Jean Monnet Center at NYU School of Law

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Citizenship Under Regime Competition:
The Case of the ,,European Works Councils"

Wolfgang Streeck [1]

As European integration progresses, expectations are warning that it will culminate in a supranational state replicating the postwar European nation-state on a larger scale.[2] But as yet little attention has been devoted to the question of what this implies for integrated Europe, and what in particular it portends for the role of European nation-states, and of statehood in Europe generally, vis-a-vis European societies and citizens. In part this may have ideological reasons. ,,Euro-optimists", which include most students of European integration, tend to minimize the significance of the disappearance of the supranational state perspective. Rather than dwell on what is not happening, they prefer to deal with what is. For the rest, a tacit assumption has become widely accepted that the old neo-functionalist vision of a ,,United States of Europe" was not meant to be taken literally in the first place, and that whatever emerges in its stead can be regarded without much questioning as its functional equivalent.

It is here that the debate on European integration links up with contemporary discussions about the state. While empirical observations of a decline of state capacity in developed industrial societies are widely shared, they are often accompanied by assurances that this is not really a loss as other, non-state mechanisms of governance - and indeed normatively preferable ones - are waiting to fill the gap. Just like the mainstream of European integration theory, the rational choice liberalism that dominates social and political thought today prefers to downplay the significance or desirability of what is not or no longer. Its proposition, sometimes explicit and mostly implied, that ,,soft" forms of order, constructed ,,bottom-up" by rational individual actors and ranging from ,,civil society" to ,,international regimes", can do the same as states and better, must be highly congenial to integration theory in a post-federal Europe desiring to remain a harbinger of good news even without the prospect of a supranational state.[3]

But is it justified to be so sanguine, about both the state and Europe? Is there nothing that a federal Europe was expected to supply that cannot as well be supplied by a post-federal Europe devoid of an integrated state? And is a historical loss of state capacity, at national level where it existed as well as at supranational level where it has failed to emerge, really a loss of nothing else? If anything, it seems to be the issue of citizenship that offers itself as a site for exploring these important questions. European integration has vastly increased the opportunities for cross-border mobility inside Europe, in and out of formerly closed national societies, by obliging the latter in international law to open themselves up to a common ,,internal market". In this way integration has forcefully contributed to the rise of a European civil society. But since integration has not at the same time dissolved national polities, rights and obligations of citizenship in Europe continue to reside in a plurality of heterogeneous and formally still sovereign national legal and political systems. While not absorbing national into supranational citizenship, and indeed as an alternative to doing so, European integration has enveloped national citizenship regimes in a transnational market and in the international institutional constructions that make up today's European Union. The result is a highly complex, multi-tier configuration of national and transnational institutions which has made national systems of citizenship increasingly accountable to international agreements and supranational law, by subjecting them to rules that limit what national governments can award or deny, not just to the citizens of other European countries but to their own citizens as well.[4]

The question is what exactly these changes imply - for the institution of citizenship, the role of the state in European society, and the ,,nature of the beast" (Puchala 1972) of European integration. One influential and extremely well-argued position, that of Joseph Weiler (1991; 1995), takes the fact that national citizenship has become accountable to a supranational regime that is clearly not a state, as a sign of a highly desirable divorce of the principle and values of citizenship from the organizational form, not just of the nation-state, but of the state as such. European integration, as I read what to me is the core of his argument[5], may well have been primarily about the accommodation and promotion of cross-border mobility. But to accomplish this it had to make national systems of citizenship extend to foreigners from other European countries - but perhaps ultimately from everywhere - much the same rights that they have in the past come to extend to nationals. In this way, while leaving the national basis of citizenship in principle untouched, integration makes national citizenship less parochial and more universalistic than it used to and would otherwise still be. This it does because any discrimination on the basis of national origin, of people or commodities, and of course also of people as commodities, obstructs the common internal market. States willing to build such a market - but also unwilling to dissolve into a common state - must therefore accept restrictions on their sovereign power to discriminate against foreigners, be they workers or traders, investors and employers. While citizenship may remain nationally based, and indeed in the absence of a supranational state must remain so, it must also cease to be nationalist, for which purpose it must be brought under supranational regulation through the organized collectivity of European states, the European Union.

Eliminating national parochialism from national citizenship can truly be regarded as civilizational progress. Weiler goes, however, several steps further. For him the fact that in the case of European integration such progress was not associated with the formation of a new super-state is progress in itself (Weiler 1991, 2478 f.). In particular, Weiler does not at all regard it as a deficiency that the European Union was not allowed by its member states to evolve into a supranational state capable of serving as a common source of common European rights and obligations of citizenship. Nor does he consider the present, indirect method of making national citizenship regimes conform with universalistic rules of non-discrimination as a second-best solution, however fortuitously effective. Instead Weiler celebrates the European Union and its unique citizenship regime as evidence that a universalistic extension of citizenship beyond its traditional, nationalist limitations is not conditional on attendant growth of a bureaucratic-coercive state apparatus, with all the pathologies this has in the past clearly involved. Especially the way in which the European Court of Justice managed to make national systems of citizenship conform to universalistic principles of non-discrimination - essentially by a creative reading of human rights into market freedoms - indicates for Weiler that expanded rights of citizenship can be anchored in common values rooted in a common civil society, and can be had without expanded state capacity and power. The stark conclusion, with highly optimistic implications, is that growth of citizenship today can be decoupled from progress in state formation; that there is not just a non-national but also a non-statist basis for citizenship; and that obligations of citizenship can be institutionalized as obligations to a peaceful civil society integrated by common values, rather than to an exclusivist and potentially nationalist state kept together ultimately by coercion.

In contrast to Weiler, this paper emphasizes the limitations of citizenship separated from state power and state capacities. As I will argue, such limitations apply also to a construction like the European Union that undertakes to reorganize national citizenship by supranational regulation,[6] as an alternative to vesting it in a supranational state. While citizenship may indeed often have been distorted by its association with the state, it is my view that it is also the case that crucial rights and obligations that are part of an advanced concept of citizenship are probably enforceable only in such association, and must become less enforceable if the latter is severed. As citizenship becomes grounded in stateless supranationalism, it may therefore very well become more value-based. But the values in which it will then be based are ones that can be enforced by a supranational non-state on national states, and not ones that would need to be enforced by a sovereign state on - some of - its subjects.

More specifically, I wish to argue that a supranational regime that requires national states to make their citizenship regimes allow for unimpeded mobility across national borders, is likely to weaken national powers of enforcement of obligations of citizenship without being able to replace them at supranational level. Intervention in national states by a supranational non-state aimed at making national citizenship more other-regarding may thus change the content of citizenship, tipping the balance between involuntarily accepted obligations and voluntarily accepted liberties in favor of the latter. In fact, as supranational regulation leaves the national basis of citizenship unchanged, it may at the end of the day not even make national systems much less parochial, as they will still be able to use their remaining sovereignty to defend their integrity. The result would then be an uncertain impasse between re-regulation and deregulation of national citizenship systems that can be expected to play itself out in a variety of complex and often paradoxical ways, depending on the issue at stake.

A perspective of this sort arises if the conceptual apparatus that informs an analysis like Weiler's is expanded to take into account that the persistent plurality of national citizenship regimes in Europe is embedded in a common market economy:

1. Supranational re-regulation of national citizenship may well increase mobility as much as supranational state formation would. Unlike the latter, however, and in its absence, the very same measures that are to make citizenship regimes more universalistic also expose them to competition. In the European Union as it has evolved, the national polities that continue to be the seat of citizenship exist side-by-side in an economy integrated, not least, through supranational obligations for nation-states to allow for cross-border mobility, collectively imposed and enforced by national polities on themselves. Governance of the integrated economy then resides, not in an integrated state coterminous with it, but in a number of nation-states coupled with each other through a complex variety of international and supranational arrangements, partly limiting and partly safeguarding their individual sovereignty. Unlike the European economy, that is to say, which is for all practical purposes integrated, state capacity and the rights and obligations of citizenship aligned with it remain fragmented the way European integration today proceeds. However effectively national systems of citizenship may therefore be coordinated by supranational obligations enhancing cross-national mobility, they continue to be embedded into and restrained by, not just a stateless supranational-intergovernmental institutional order, but also a free market much more encompassing than each of them.

In an integrated market governed by fragmented sovereignty, the wielders of that sovereignty compete with one another, in part for the respect of their citizens and those of other countries entitled to cross their borders, but most importantly for the allegiance of mobile production factors. National systems of citizenship, and of public power generally, that are part of a political-economic order of fragmented sovereignty lose their monopolistic status. What rights and obligations they extend to their citizens will depend, not just on internal considerations, for example their internal balance of power or their collective political will, and not only on whatever international obligations may apply, but also on the anticipated consequences for a country's competitive position in the common market. Such competition between states may well enhance citizenship by forcing state authority to become more responsive to citizen needs. But it is also possible that it will militate against those elements of citizenship that involve obligations, especially for fractions of the citizenry that are not only highly mobile but also in command of resources crucial to a country's competitive position in the common economy.[7]

States that have become embedded in a larger economy, and as a result lose their monopoly of governance, may find themselves constrained to respond to pressures from resourceful and potentially mobile citizens by changing the terms of citizenship in their favor. To protect themselves from this, all states located in a common market would without exception have to agree on an international regime binding them to common minimum standards, in addition to and above non-discrimination of foreigners, thereby exempting a floor of citizen rights and obligations from inter-state competition. Such a regime would clearly differ from one of national commitments to free movement across borders. Rather than unleashing competition, it would restrict it by building a cartel of sovereign states against market pressures, for the purpose of collectively restoring state capacity and authority. A regime like this, one of positive as opposed to merely negative integration (Streeck 1989; 1992; Scharpf 1994; 1996), would obviously be highly demanding to build and maintain; whether it would ever come about and on what subjects would seem a wide open question. It is important to note that complexities of this sort would be absent in a mode of integration that would replace fragmented national with unified supranational citizenship.

2. What is being integrated in Europe is not just a society but, primarily, an economy, and what moves across national borders are not just citizens but also production factors, especially labor and capital. As citizens workers and employers may or may not adhere to identical values; as participants in economic exchange they also have different interests. As citizens they have rights and obligations in relation to the state; as participants in production they create rights and obligations for each other. And while as citizens they are equal, their position in the economy is highly unequal. Advanced forms of citizenship take account of differences in interest and capacity, as well as of asymmetrical (,,class") relationships within civil society, by attaching differential status rights and obligations[8] to different economic positions - what Marshall (1964) has called industrial citizenship - and adding them to the civil and political rights awarded to all citizens alike.

Rights and obligations of industrial citizenship are reciprocal. Rights of workers, for example to collective bargaining, information, consultation and co-decision-making, are reflected in corresponding duties of employers, such as to bargain in good faith, inform truthfully and in good time, listen open-mindedly, and refrain from acting on specific matters without the agreement of the workforce. They are also asymmetric, as they are designed to balance the underlying, pre-existing asymmetry in economic power between employer and employed. Moreover, protected by means of public authority, they are supposed to be non-negotiable between the labor market participants to which they apply, insulating them against the impact of differences in bargaining power. For example, just as workers cannot sell their right to bargain collectively, or agree to work for less than the minimum wage, employers are not allowed to buy themselves out of their obligation to consult.

With open borders and competing sovereignties, however, industrial citizenship is likely to become increasingly contractual, which in turn must shift its balance of obligations and rights to conform more closely to market conditions. If employers are free to choose between alternative industrial citizenship regimes that impose differently burdensome obligations on them, they will ceteris paribus migrate to the regime that they find least demanding. For jurisdictions competing for economic resources inside an international system of fragmented sovereignty, lowering employer obligations and, with them, worker rights may offer itself as an effective strategy for attracting migrant capital. In fact, for industrial citizenship to erode actual migration may not even be necessary. States, but also workers, that are faced with the possibility of employer exit may agree to reduce employer obligations, i.e., worker rights, to prevent such exit, or they will refrain from using rights or calling upon obligations even though these may - still - be on the books. Mobility and the attendant decline of state monopoly will thus encourage a de facto re-negotiation of, supposedly, non-negotiable terms of industrial citizenship, in favor of employers as these are more mobile and command more indispensable resources. In the process the rights and obligations of industrial citizenship are bound to become less public in character and more private, less status-like and more contractual, and overall less like institutions of citizenship and more like arrangements of the market.

3. Rights of citizenship refer not just to equal treatment by the state; to free participation in market exchange; or to an equitable balance of rights and obligations in employment. They also include social rights to a minimum standard of living regardless of market condition and productive contribution. Rising cross-border mobility and declining state monopoly under fragmented sovereignty affect such rights as well. If generated by a national polity located within an international free market, social rights are also costs that may give rise to competitive disadvantage and, to the extent that they require taxation of employers operating under international competition, may trigger migration of capital to less costly jurisdictions, or the threat of such migration.

In national states obliged under international rules to open their borders, the benefits of social rights must be extended to all workers, including foreigners deciding to migrate in, whereas the costs can be imposed only on employers that not only reside in the country but also decide not to migrate out, which in principle they easily could. Non-discrimination as a supranational regulatory norm governing national citizenship thus tends to add foreigners to those entitled to a social minimum, while allowing nationals unwilling to pay the bill to go elsewhere. This imbalance between a potentially rising number of beneficiaries and a potentially shrinking number of payers, and in fact already the anticipation of such imbalance, is bound to exert pressure on national systems to cut back or, at the very least, not to expand their provisions of social citizenship, in effect returning to the market the determination of a growing share of their citizens' income and welfare.[9]

The purpose of this paper is to show that there is little justification in Europe today for exalted hopes for a non-statist expansion of citizenship, provided citizenship is to be more than the civil right of individuals freely to enter into contractual relations.[10] To demonstrate this I will explore in some depth a prominent area of European Union social policy, the institutionalization of workplace participation rights, in particular through the 1994 Directive on European Works Councils.[11] The picture that will surface differs from Weiler's: it is one of weak supranational rights weakening strong national rights of social and industrial citizenship, and indeed facing considerable limitations even in what allegedly is the principal strength of the European quasi-constitution, the enforcement on national systems of equal treatment of foreigners. In the European Union's system of fragmented sovereignty, I argue, attempts to make national systems of citizenship more other-regarding often do not get beyond a very elementary stage, if at all, while in the process they call forth pressures for a reversal of the historical evolution from civil to industrial and social rights. Small gains in civil rights, smaller than one might expect, are likely to be paid for with considerable losses in social and industrial rights. While only marginally extending citizenship across national borders, European integration as we know it tends to weaken it within them.

[1] Wolfgang Streeck is professor of sociology and director at the Max Planck Institute for the Study of Societies in Cologne. He is honorary professor at Humboldt Uniiversity in Berlin.

[2]Earlier versions of this paper were presented at a conference on Social and Political Citizenship in a World of Migration, European University Institute, European Forum, 1995-96 Project on Citizenship, Florence, Italy, February 22-24, 1996, and to a plenary session of the 1996 meeting of the European Consortium for Sociological Research (ECSR) in Berlin, August 27, 1996.

[3]Not to mention the ,,scientific" respectability that is gained by shifting to a liberal world view capable of providing analyses with a proper ,,micro-foundation".

[4]The way I use the terms, ,,international" refers to relations between states; ,,transnational", to phenomena that exceed the boundaries of any one state; and ,,supranational", to institutions above states that are designed to govern these.

[5]Leaving aside his more specific concern with the Maastricht ruling of the Bundesverfassungsgericht (Weiler 1995). I also concentrate on the relationship between, in Weiler's terms, state and citizenship, at the neglect of a third pole that figures importantly in his argument, ethnos or Volk.

[6]I am using the term, ,,regulation", in the sense of Majone (1993; 1994).

[7]The mechanism at work was identified as early as the eighteenth century, by none less than Adam Smith who, as quoted by Streit (1995), points out in the Wealth of Nations that ,,the proprietor of stock is properly a citizen of the world, and is not necessarily attached to any particular country. He would be apt to abandon the country in which he was exposed to a vexatious inquisition, in order to be assessed a burdensome tax, and would remove his stock to some other country where he could, either carry on his business, or enjoy his fortune more at ease. By removing his stock, he would put an end to all the industry which it had maintained at the country he left... A tax which tended to drive away stock from any particular country, would so far tend to dry up every source of revenue, both to the sovereign and to the society. Not only the profits of stock, but the rent of land, and the wages of labor, would necessarily be more or less diminished by its removal."

[8]On ,,status" in the present context see Streeck (1990).

[9]See the present situation in almost all European countries, which are facing both an erosion of their tax base and rising demands on their welfare budgets, forcing them to cut back on citizen entitlements.

[10]And it is only this that the paper will show. In particular, it does not try to predict the extent of ,,social dumping" in Europe, nor is it to announce a ,,race to the bottom". While the first of these concepts inexplicably limits the impact of regime competition to the migration of production and ,,jobs" from high to low-standard regimes, the second treats time essentially the way economists do: as non-existent. But time matters, and the historical world is sticky and slow-moving. A "creeping to the bottom" is all one can expect, and it would be bad enough.

[11]Exactly the same point can be illustrated drawing on other acts of European social policy, for example the Posted Workers Directive. I will deal with this case elsewhere.

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