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As I have argued more fully elsewhere,5 the present pattern of differentiated integration
in the EU is not the outcome of a teleological process. Instead, it is the
provisional conclusion of a complex mix of strategic politics,6 sectoral politics7 and geopolitics.8 Strategically, the evolving forms and models of
flexibility within the EU may be viewed as a contest between, on the one hand,
those states and other political actors who favour flexibility as a way of
maintaining the momentum of integration against the caution of nationalist
sceptics and, on the other, those same sceptics who favour flexibility as a way
of endorsing a less monolithic - and so ultimately less powerful EU. In other
words, flexibility is not an end in itself, but an ubiquitous device which can
serve quite different - even diametrically opposed - end-games. Sectoral
politics further complicates the picture, in that political actors located at
various different political levels, and often with quite different overall
strategic visions as to the balance of power between states and supranational
polities, may argue for or against flexible initiatives and arrangements in a
discrete policy sector because of their particular ambitions and preferences in
that sector. Finally, the geopolitical context is important in that it
introduces various external factors to compound the internal pressures towards
differentiation. In the realigning international order which has succeeded Cold
War bipolarity, other European and global organisations and the new wave of EU
candidate states make for a more elaborate network of overlapping polities of
which the complexly differentiated EU framework is but one seamless component.
Flexibility, therefore, is a `non-project'.9 It is not the product of a single fixed or even
evolving vision. Rather it has unfolded in a sequence of strategic negotiations
and gambits, of policy-driven initiatives within discrete sectors, and of
accommodations of new geopolitical forces. Its composition is marked not by
design, certainty and consensus, but by contingency, ambiguity and
disagreement.
In turn, the complex and unplanned legal order of
flexibility gives rise to at least four sets of governance problems. There is,
first, the specifically legal question of delineating the boundaries between
legal orders and putative legal orders and of finding appropriate bridging
mechanisms between these legal orders.10
This is difficult enough in a two-dimensional juridical space; regarding the
paradigmatic `EC' relationship between two kinds of fixed polities, each making
sovereign claims - member states on the one hand and the supranational order on
the other. It is all the more difficult in the multi-dimensional juridical
space which is beginning to characterise the highly complex world of
differentiated integration, with the fixed polities of the two-dimensional
universe of legal sovereigns co-existing with and in actual or potential
competition with other `Europes' which are emerging from (e.g., Schengen, the
Eurozone) or overlap with (e.g. Council of Europe) the fixed and uniform
`second-dimensional' supranational order - each with different jurisdictional
scope and depth and claiming different degrees of legal autonomy. The legal
boundary disputes and sovereign power struggles associated with a
two-dimensional configuration are compounded under a multi-dimensional
configuration simply because there is more border territory to fight over and
more existing or aspirant centres of power to enter the fight.
There are
also broader problems of political efficacy,11 democratic accountability12 and social legitimacy13 associated with the multi-dimensional
configuration of authority which flexibility entails . As regards political
efficacy, problems of trust, mutual understanding and technical co-ordination
between political institutions are exacerbated to the extent that these
institutions are domiciled in different political systems. Democratic
accountability, too, is posed new challenges in a crowded institutional
context, where popular affinity is contested or diluted and lines of
responsibility are blurred. These problems of legal authority, political
efficacy and democratic accountability also threaten the popular legitimacy of
a multi-dimensional order, as does the absence of a discourse of authority and
belonging which marks out the non-project of multi-dimensionality as an
identifiable and defensible political construct in the same way as nationalism
and supranationalism and their associated cultural and constitutional
discourses mark out one-dimensional and two-dimensional orders.
If we look
at the governance problems of flexibility in the light of its diverse roots, we
gain a sense of how law is both profoundly affected by the onset of flexibility
yet remains capable of significantly influencing its future course. On the one
hand, flexibility challenges both the technical capacity of law to address
problems of inter-systemic co-ordination, together with associated problems of
political efficacy and democratic accountability, and also its symbolic
capacity as an independent source of power and as a means of constructing an
authoritative image and discourse of the political order and cultural community
it seeks to represent.14 The fragmentation
of legal orders problematizes what previously was taken for granted - the
unassailable authority of any particular order, and so poses new technical
challenges to find acceptable and mutually validated forms of communication and
co-ordination between systems. Equally, the new flexible configuration of
authority, because it is not a planned or consensual development, offers little
scope for the construction of a grand constitutional image and discourse to
undergird its identity and bolster its legitimacy. Further, the technical and
symbolic deficiencies may be mutually corrosive. Where there is no unified
order and so mechanically identifiable intra-systemic technique
available,15 how, without begging the
question, do we identify an acceptable constituency and method to construct an
authoritative version of the new political order? Equally, where there is no
legitimating trans-systemic canopy, how do we arrive at acceptable technical
solutions to co-ordinate the legal, institutional and democratic orders of the
different and contested systems?
On the other hand, the very circumstances
that challenge and dilute the problem-solving capacity and symbolic authority
of law guarantee that it remains a precious currency. The problems of
co-ordination and legitimacy of the new flexible order are on such a scale that
law, with its traditionally vast regulatory potential, will inevitably continue
to be invoked as a means of containing and resolving crises. Moreover, as a
deeply-layered and richly-resourced repository of traditional and cultural
meanings, the legal form retains a `legitimacy credit' and a versatility even
in the face of new and apparently discontinuous contexts of political
organisation and regulation.16
To
assert the indispensability and resilience of law is not, it should be
emphasised, to commit the lego-centric error of viewing law as the only or
predominant guarantor of the new order. Fertilised by the rich soil of
strategic, sectoral and geopolitical considerations, economic or security-based
or other pragmatic discourses of justification may become prominent, and so a
legal crisis does not necessarily portend a crisis of the entire order. Just as
constitutions in state polities evolve conventions and customs to smooth over
crises, or contrive abeyances and leave silences to avoid them,17 so this may also be true of a more fragmented
legal order. Yet there are limits to this. Custom, convention, soft law and
various other para-legal forms are lent shape and coherence by the formal legal
order. Bargaining in the shadow and in the interstices of a legal framework
depends, finally, upon the resilience, relevance and threshold legitimacy of
the legal framework.18
The Treaty of
Amsterdam is instructive of the dual role of law - as both victim of upheaval
and restabilising influence - in circumstances of incipient
multi-dimensionality. In its treatment of flexibility, Amsterdam is both
instrumental and reflexive. It both adds to the unplanned
architectural sprawl of flexibility, particularly in documenting the latest
compromises over Schengen and the Third Pillar,19 and begins to reflect upon, learn from and
impose a certain design and a certain set of ordering principles upon the
flexible arrangements already in place or newly provided for, particularly in
respect of so-called `enhanced co-operation'.20 This dualism - which fits a broader pattern of
retrospective or incremental constitutionalization within the EU Treaty
framework21 - suggests how law, and in
particular the ideal of legal uniformity within the EU, can simultaneously
exhibit both vulnerability to wider political forces and an independent
capacity to make a positive difference to the prospects of the European polity.
The vulnerability of the legal form is exposed where the Treaty-makers, qua
bearers of sectoral, national-strategic and other partial interests, have
influenced negotiations in the IGC in the direction of further ad hoc
flexibility in Justice and Home Affairs, with attendant problems of boundary
maintenance and co-ordination, political efficacy, democratic accountability
and social legitimacy. But where the Treaty-makers, qua guardians of the
integrity of the European legal order, reflexively develop general principles
of enhanced co-operation, there law reasserts itself as an active agent
engaging - even pre-empting - some of the governance problems associated with
incipient multi-dimensionality.
If the schizophrenic approach of the
law-makers to the EU's claims to sovereign authority reflects the contested
legitimacy of the European order within a multi-dimensional framework,
Amsterdam also demonstrates how the introduction of flexible premises into a
legal order can undermine its technical puzzle-solving capacity in a
fundamental manner. Capacities which we take for granted within a unitary
framework are lost or fail to be generated in a more fragmented legal
environment. For instance, Amsterdam fails to provide a settled rule of
adjudication in favour of the EU's supreme court, the ECJ lacking comprehensive
or even uniform jurisdiction in the Third Pillar.22 If this example seems to flow naturally from the
concerns of the treaty-makers to preserve national claims, then even where a
greater loyalty towards the European order prevails, the accommodation of
flexible premises can undermine technical capacity. For instance, the basic
intra-systemic assumption that competing principles can be balanced on a common
scale in the resolution of a particular dispute is confounded in the
formulation of the terms of enhanced co-operation under the general enabling
clause of the Amsterdam Treaty.23 Where a
determination falls to be made whether a particular flexible initiative should
go ahead under that clause, how are we to weigh the value of the principle of
non-interference by participating states either with the acquis
communautaire or with `the competences, rights, obligations and interests'
of the non-participating states, on the one hand, against the value of the
competing principle of non-prejudice by non-participating states of the
implementation of closer co-operation by participating states on the other?
There is not one but two answers, depending upon the perspective of which of
the two groups - participating or non-participating states - is privileged in
assessing costs and benefits, and there is no objective way within a
fragmenting legal order of adjudicating between these two perspectives.
5 N.Walker, "Sovereignty and Differentiated Integration in the European Union", (1998) 4 European Law Journal, pp.355-388.
14 R. Cotterrell, "Some Aspects of the Communication of Constitutional Authority", in D.Nelken (ed) Law as Communication, (Aldershot, Dartmouth, 1997) pp.129-151.
15 As, for example, in constitution amendment clauses.
16 Cf, D. Nelken, "Is There a Crisis in Law and Legal Ideology? (1982) 9 Journal of Law and Society, pp.177-190.
17 Cf, M.Foley, The Silence of Constitutions: Gaps, `abeyances' and political temperament in the maintenance of government, (London, Routledge, 1989).
18 For discussion of the formidable challenges posed to the legitimacy and efficacy of the legal order of the single European currency, see P. Beaumont and N.Walker, "The Euro and European Legal Order," in P.Beaumont and N.Walker (eds), Legal Framework of the Single European Currency, (Oxford, Hart, 1999), pp.169-194.
19 Cf, N.Walker, "Justice and Home Affairs", (1998) 47 International and Comparative Law Quarterly, pp.236-245.
20 For the general framework of enhanced cooperation, see Arts.43 and 44 TEU; for its application to the First and Third Pillars, see Art.11 EC Treaty and Art.40 TEU respectively. For discussion, see references at note 2, supra.
21 This can be seen, for example, in the belated recognition given to the European Council in the Single European Act, long after it had become an institutional fact; or, arguably, in the development of a general concept of subsidiarity in the Treaty of Maastricht, after many years of executive and, to an even lesser extent, legislative practice and procedure which paid uneven attention to the logic of subsidiarity. This type of constitutional reflexivity is also commonly found in state constitutions, but arguably it is more pronounced at the EU level precisely because of the ambiguous status of its foundational documentation. Originating as an international treaty rather than a self-styled constitution, it retains much of the detailed legislation typical of Treaty law. Consequently, it has a more pronouncedly two-tier internal structure than many state constitutions, more likely to contain both the detailed instruments of governance and - often as a later addition - principled reflection on these instruments.
22 Art.35 TEU; cf, P. Tuytschaever, Differentiation in European Union Law, (Oxford, Hart, 1999) pp.95-96.
23 Art. 43 TEU. Cf Walker, supra., note 5, pp.386-387.
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