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The nineties have witnessed a change in public opinion towards European integration. Citizens are now more aware of the great amount of powers vested in the Union, they worry about it and they are more critical about how those powers are used. As Joseph Weiler has explained, this popular reaction is only part of a set of challenges on the Community´s classic constitutionalism, that also come from individual member states, courts and academia. [5]
Unfortunately, the widespread criticism on how and where the Union operates has not lead to a constitutional debate. Most of European politicians are guided by a short term pragmatism that leaves no room for big picture questions. An European constitutional debate is even more urgent when one considers that the two big projects in the Union´s agenda, monetary union and the fifth enlargement, can have a very serious impact in the shape and politics of the Union. But for the time being both projects are being approached with a technocratic mentality and there is hardly any debate about its long-term constitutional implications.
The Maastricht Treaty demanded the beginning of a new Intergovernmental Conference in 1996, to renegotiate some of the issues not well settled in the 1990-1991 round of negotiations. But the 1996-97 IGC was not used as an opportunity to revise some of the fundamentals of European integration and render the Union more democratic -whatever that turns out to mean once the European political process takes democratization seriously.
The old-fashioned negotiating method was clearly unsuitable to address the concerns of fifteen member states that form a complex Union. Legitimate non-statal actors where formally excluded from the IGC negotiations, something that helped obtain some kind of agreement, but was an obstacle in terms of the quality of the ideas on the table and the democratic credibility of the process. Notwithstanding, the Conference was influenced by some non-international actors, that are part of a highly pluralistic Union.
The introduction by the IGC of new Treaty rules on enhanced cooperations was presented by most Community actors in a functional fashion, without referring to its possible redistributive impact on the power structure of the Union. Enhanced cooperations is just hailed as the only possible way for international and supranational actors to deal with monetary union and enlargement of the Union at the same time -all with this one magical formula:
* Monetary Union will create a two speed Europe. The "in" countries will need to harmonize specific policies, and "out" countries should not be forced to accept these new European norms and should not be able to prevent "in" countries from passing them. Enhanced cooperations is the solution.
* Enlargement will bring inside the Union a group of countries with a very different social and economic situation from the "core" EU member states. Through enhanced cooperations, integration can proceed speedily for those ready for it, avoiding both the risk of a fortress Europe (the Eastern countries will be inside the Union) and the perils of not deepening enough European integration when Europe becomes larger and much more heterogeneous.
These two discourses have been used to justify the birth of enhanced cooperations in a pragmatic way. But this double explanation becomes a simplification when one speculates about the future impact of these cooperations on the different actors and facets of power inside the European polity. [6]
One should not forget that the European Community of the nineties legislates in two-thirds of the cases by majority voting. Institutions with political weight like the Commission or the Parliament are only to some extent influenced by national governments. In addition, many important Community decisions are taken in the infranational arena by experts with no clear national or European allegiances: institutions and member states only rubber stamp those decisions. All of this happens while the EU is still expanding the number of its member states and the scope of its powers.
These phenomena have reduced the importance of the Union´s international arena and at the same time have invited a reaction from national governments that feel their growing irrelevance. An example of such a reaction in the last years is ministers treating in many ocassions Commissioners as Ambassadors, and transforming Commission´s politics into those of a "COREPER III". Similarly, member states now fight in an unprecedented way to situate loyal civil servants in key posts at the Commission. Another example is the intensified control of national governments over members of the European Parliament based on nationality, regardless of political affiliation.
An IGC places a lot of power in the hands of the national governments: many of the matters discussed are of constitutional nature. The agreements, reached through consensus, determine the rules of the game in the Union for the years to come. But the last IGC was a slow-paced diplomatic conference in which serious disagreements prevented member states from reaching important results. The IGC postponed crucial questions like the much needed reform of the Commission and the Council.
Maybe governments are already too weak to make this come back. Maybe some of them don´t realize that they are weak and still feel empowered by the Union. Also, one can speculate if the two big projects in the Union´s agenda, monetary union and the new enlargement, have become the priority for these international actors. There are large political rewards they can reap from them -making it into monetary union or bringing into the Union countries which are likely to become allies and/or which can slow down integration.
Yet the IGC introduced in the new Treaty the notion of enhanced cooperations and different rules to develop them in the Community sphere and in the third pillar. This endorsement of a two-speed Europe can be seen as international actors flexing their muscles and attempting to tame Community institutions: Amsterdam´s enhanced cooperations will allow member states to rebel against the iron rule of majority voting. Moreover, enhanced cooperations reconstitute to a certain extent states as monolithic actors. The forefront of European integration will be formed by a group of member states willing and able to develop closer cooperation among themselves. Member states gain the power to initiate "enhanced cooperations legislation" and to control its adoption in this inner circle more tightly than in normal Community situations. This move to enhanced cooperations can also be glorified as a remedy to the democratic deficit, by taking a rather formalistic and old-fashioned vision of the Union, in which the international arena is the only facet of European power where serious legitimacy questions don´t arise.
The debate on "flexibility" traces its academic lineage to the seventies. [7] It became part of the European political debate only after the famous Schaüble-Lamers document of 1994. [8] The German politicians used the language of internationalism to write about the future of a Union with more than twenty member states. The authors suggested that already there was a dangerous and growing divergence of interests in the EU and that the existing institutions did not function properly. They also claimed that this Europe was unsustainable once monetary union and enlargement happened. Some supranationalism had to be preserved in the new Europe, as a guarantee that re-unified Germany would remain firmly anchored in the project of European integration. To solve the dilemma, the document proposed setting strict limits on the scope of EU powers and launching a hard core Europe. The authors went on to name the actual member states that would form part of the more exclusive Euro-club (all the EC founding members except Italy). The Schaüble-Lamers piece influenced the Westendorp Report and had a clear impact in the 1996-97 ICG itself.
[5] See J. Weiler, "The Reformation of European Constitutionalism", op. cit.
[6] Most of the existing literature on enhanced cooperations takes into account the current European political context, see for instance: C.D. Ehlermann, "Differentiation, flexibilité, cooperation renforcée: les nouvelles dispositions du traité d'Amsterdam", Revue du Marché Unique Européen, 3, 1997, p. 51-90; F. de la Serre & H. Wallace, "Les Cooperations Renforcees: une fausse bonne idee?", Etudes et Recherches, Notre Europe, no. 2, June 1997 and; J. M. de Areilza & Alfonso Dastis, "Flexibilidad y Cooperaciones Reforzadas: ¿Nuevos Métodos para una Europa Nueva?, Revista de Derecho Comunitario, vol. 1, Enero-Junio 1997, p. 9-28
[7] See for a very complete explanation of the origins of this debate and for an analysis of the new articles on enhanced cooperation in the EU Treaty the article by C.D. Ehlermann, "Differentiation, flexibilité, cooperation renforcée: les nouvelles dispositions du traité d'Amsterdam", op. cit. See also for an early formulation of the limits of flexibility J. Lipsius, "The 1996 IGC", European Law Review, vol. 20, no. 3
[8] Document of the CDU/CSU Group at the German Bundestag, September 1, 1994