Law in an Enlarged European Union
George A. Bermann

First published in the EUSA Review (14: 3), Summer 2001, pp.1, 4-6.
 

IT IS COMMONLY HELD, and I think also true, that no enlargement of the European Union that has occurred to date compares in significance to the particular enlargement or sets of enlargement that are envisioned for the years that lie more or less immediately ahead. Whether viewed in terms of number of accession states, geographic expansion, population increase, linguistic diversity, or social and economic heterogeneity (both among themselves and vis-a-vis the current fifteen), this enlargement is nothing less than momentous. With this enlargement, the European Union truly crosses a threshold. The way in which the Union copes with it will be a fair indication of its capacity to handle any subsequent enlargement that I can envision, even one that might include such large Eurasian entities as Russia and Turkey.

In addressing the subject of law in an enlarged European Union, one has to recognize that enlargement’s legal dimension is neither its most challenging nor even its most important. Given the immense political, economic, and social (i.e., essentially non-legal) stakes, this enlargement recalls something that European law scholars know, but have tended recently to forget as they turned their fond gaze to the European Community and the European Union over the last decade or two, namely that the law is fundamentally an instrument and not an end in itself.

We know that, notwithstanding the inspiration of Jean Monnet and the early references to eventual political developments, the European project was viewed early on in predominantly economic terms. But even to the extent that the project was always more than economic in nature, the law as such was found to be interesting chiefly insofar as it provided a framework for achieving certain prescribed economic objectives. The law was viewed, as it so often is viewed elsewhere, as purely instrumental in the sense of enabling us to produce solutions to a defined set of problems, and its efficacy was assessed chiefly by reference to its output.

This may have been most evident when all we had before us was the highly sector-specific and highly economic-objective-specific Coal and Steel Community. But even with the advent of the European Community as such, matters had not fundamentally changed. True, the enterprise was no longer sector-specific, but the Community could still fairly be characterized, and was in fact largely conceived of, as highly economic-objective-specific. What substantive policies, as such, were proclaimed paled alongside the all-important "four freedoms" (each of them entailing the freedom of movement of a factor of production); and with the exception of gender equality, those policies were fundamentally economic in nature; arguably even the gender equality policy was couched, and in a sense conceived of, in economic terms.

Since European law was thought about chiefly as a means of attaining more or less independently defined (and largely economic) objectives, attention to law focused largely on the law that emerged from the Community’s legislative, administrative and judicial processes rather than the law that accounted for and explained those processes. Without making too much of nomenclature, I recall with interest that the titles of the leading English-language casebooks tended to refer to "The Law of the European Communities" rather than "European Community Law."

While perhaps not its intention, the Single European Act profoundly changed this. Though the Act made the 1992 "internal market" initiative its centerpiece, and though that initiative was presented as little more than a "perfection" of the common market (and its four freedoms), European law from that point onward came increasingly to be viewed in non-instrumental terms, and the legal structures and processes that gave rise to legislative and adjudicatory change became as interesting as, if not more interesting than, the legislative and adjudicatory change itself. This is not a complete paradox, of course. If the 1992 program (and through it the internal market) was the centerpiece of the Single European Act, it was importantly joined to fundamental institutional change and expansion of independent Community competences. Indeed the SEA brought the most fundamental institutional change and the largest expansion of independent Community competences since the Community’s very founding. It signaled a fundamental shift from the law that achieved economic integration to the law that had made that achievement possible and that might in the future make a much broader range of achievements possible.

By the time of the Treaties of Maastricht and Amsterdam the transformation was complete. The debates in the dozen years between 1985 and 1997 were unabashedly about governance in the very largest sense. Leaving aside the utterly singular phenomenon of European Monetary Union (singular because of its enormous symbolic as well as economically integrative function), the legal debates surrounding those treaties were about things such as constitutionalism, democratic deficit, the existence or non-existence of a “demos,” transparency, treaty simplification, the Union’s legal personality, subsidiarity and human rights. So robust and compelling was the constitutional and para-constitutional discourse that the EU was able to undergo its most recent accessions—those of Austria, Finland and Sweden —with scarcely a pause or deflection in the debate.

As regards the attention given to law, the contrast with the forthcoming enlargements is positively striking. Counter-intuitive though it may seem, the very same factors—political, economic, and social—which make this enlargement unique require that European law re-acquire its instrumental focus. European law has now once again to perform what are essentially problem-solving tasks. Put differently, the overriding legal interest of the prospective enlargement is that it calls fundamentally into question what appeared to have been a permanent shift in atten-tion from the law emerging from European decision- and policy-making to the law shaping European decision- and policy-making.

This is not to say that legal discourse about governance in the "grand" sense is altogether behind us, far from it. The next scheduled Intergovernmental Conference--of 2004--will once again place governance in this sense at center stage; the agenda items already include some old constitutional friends (e.g., simplification of the treaties, subsidiarity, incorporation of the Charter of Fundamental Rights) as well as some new ones (e.g., whether to install a catalogue of Community competences). But now the European Union will have to make its inescapable re-commitment to the instrumental value of law at the same time that it pursues the constitutional project, whatever shape that project may have. The coincidence of these undertakings--the instrumental and the constitutional--will make each of them more difficult to carry out, as well as more difficult than in the past, when in my view one or the other of them was at all times implicitly, if not explicitly, treated as then preponderant.

As an exercise, let us consider the evidence as to whether European law is up to the task I have described. We can begin by identifying what appears to have been European law’s focus during the current period lived in the shadows of enlargement. Enlargement (or rather enlargement’s prospect) appears basically to have fueled two legal preoccupations. The first is whether, and if so in what time frame, the accession states can adequately embrace the corpus of existing law, the acquis communautaire. The second concerns the institutional modifications to the Union that are needed in order to accommodate the enlarged membership.

While these are unquestionably the right legal questions, the terms in which they have been asked fail to reflect the renewed problem-solving urgency to which I have referred.

As concerns the question whether, and if so in what time frame, the accession states can adequately embrace the acquis communautaire, I doubt whether it is sufficient to ask about the rate of success of the accession states in the legislative transposition of directives. Surely more must be asked and answered about the adequacy of the machinery in the accession states, at national and sub-national level, for the effective administration and enforcement of European law, questions which implicate not only domestic institutions (e.g., the efficacy of legislatures, administrations, police, and courts), but also domestic political culture (e.g., attitudes toward corruption). While we may frame the question in simple terms (such as readiness to embrace the acquis communautaire), I seriously doubt that we can satisfactorily answer it in such terms. Talking about the acquis communautaire as such is insufficient. It is not enough to consider whether the accession states will faithfully implement what has been achieved. It is also important to consider the implications of enlargement for the acquis communautaire of the future, that is to say, the acquis in whose making (or non-making) the accession states will participate.

Turning to the question of the institutional modifications of the Union needed to accommodate an enlarged membership, I have broadly analogous misgivings. Certainly the negotiators at the Intergovernmental Conference at Nice were right to confront the challenge of integrating the representatives of the accession states in the Union’s principal decision-making organs (the Council, Commission, Parliament and Court) and for re-configuring those institutions (notably the Commission) so as to avoid rendering those institutions too large or unwieldy. But there are obviously limitations to a strategy that consists of altering the per-State numbers of Ministers, Commissioners, MPs and judges. It is questionable whether that approach can adequately equip the enlarged European Union for the problem-solving era that lies ahead.

It may be revealing to consider the legal instruments that have been devised lately specifically to address the particularities of the prospective enlargement. Interestingly, some of these do take the form of institutional re-arrangements; others, however, are more properly viewed as doctrinal.

1. Qualified Majority Voting

Even in the original six-member Communities, qualified majority voting served to ensure that differences among the Member States did not completely paralyze the political process within the Council. Since the risk of political paralysis evidently increases with each enlargement, qualified majority voting evidently has continuing importance. Not surprisingly, its sphere of applications continues to grow with each enlargement; as illustrated by the Treaty of Nice. That wider use of qualified majority voting is necessary for effective political problem-solving in an enlarged Union goes without saying. Whether it is sufficient for that purpose is quite another matter.

2. Subsidiarity

While the campaign for subsidiarity was closely connected in public consciousness and discourse with concerns over excessive centralization felt in certain existing Member States (notably Denmark and the UK), it was also fueled by the prospect of an enlargement that would bring into EU membership Member States whose domestic circumstances differ mightily from one another and from the domestic circumstances of the fifteen. The prospective Member States were understandably thought to require more closely tailored solutions than the "one-size-fits-all" solution (rightly or wrongly) expected of measures emanating from Brussels. Precisely because it embraces particularity, subsidiarity was thought to respond in some measure to the realities of the EU’s eastward enlargement.

Even a relative enthusiast of subsidiarity has to admit that, as a tool, it is poorly adapted to the challenges of enlargement. While subsidiarity may perfectly well suit the desires of the Member States that are capable of achieving in one way or another the objectives of a Community policy objective set in Brussels, it almost certainly has nothing to offer the Member States that lack that capacity. At most, subsidiarity in those circumstances will suggest that action be taken at the Community rather than the Member State level. It will not reveal what that action should be.

3. Enhanced Cooperation

Enhanced cooperation, or flexibility, likewise acknowledges the fact of diversity among the Member States, and its emergence is even more closely linked to the diversity expected to result from the prospective enlargement. A general flexibility regime was inaugurated at Amsterdam (and adapted at Nice) with the avowed purpose of coping with an enlarged membership that risked making it difficult, even under qualified majority voting, for the Union as a whole to pursue deeper and perhaps more adventurous integration.

But flexibility’s relation to enlargement also needs to be examined more closely. At its core, enhanced cooperation is designed to protect the interests of the Member States that seek to use the Community system to achieve deeper or more far-reaching integration, not the Member States who are unable and/or unwilling to participate in that deeper or more far-reaching integration. Of course, the system does not leave reluctant or unqualified States wholly unprotected. At least until the Treaty of Nice is ratified, any State may block an exercise in closer cooperation by a subset of other States. But this is protection from enhanced cooperation, not protection through enhanced cooperation. The other guarantees that flexibility offers to reluctant or unqualified States may be reduced to broad assurances to the effect that those States (a) will not be bound by the decisions taken by enhanced cooperation, (b) will not be prevented from joining the bandwagon as soon as they are willing and able to do so, and (c) will not discover that enhanced cooperation has upset the existing acquis communautaire.

These are impressive guarantees, but by definition they do not address the challenge of adapting the deliberative process to the realities of enlargement. The real challenge lies in finding legislative solutions at the Community level that entail the political participation of all Member States and that bind all Member States, even while permitting differential solutions or otherwise responding to the diversity of circumstances and needs among the however-many-are-then the number of Member States. Indeed, the current flexibility regime sweeps this whole problem "under the rug" by asserting, summarily, that enhanced cooperation may not be pursued except as a "last resort," presumably meaning unless and until the ordinary legislative channels in which all the Member States participate have been exhausted.

4. Sanctions

Enlargement may not have been in the drafters’ minds when they amended Article 228 (ex 171) at Maastricht to permit the Court of Justice, upon recommendation by the Commission, to impose a monetary penalty on a Member State which fails to obey or otherwise abide by a prior judgment by the Court of Justice condemning it for a violation of that State’s Community law obligations. But when they took the further step at Amsterdam of providing a sanctioning system for Member States found guilty of a serious and persistent breach of human rights, democracy and the rule of law, enlargement was very much on their minds. Though the system as such has not been used, the Community did subsequently target Austria for including Jorg Haider’s Freedom Party in a government coalition, thereby appearing to embrace anti-democratic policies. The episode has unques-tionably to be read as a "warning shot" to future Member States to the east.

Salutary though this treaty reform may be from the point of view of protecting democracy, human rights and the rule of law, it is by its nature limited to disrespect for those overriding values. It leaves unanswered the question of day-to-day decision-making, and more specifically the challenge of mounting for a vastly and importantly altered European Union a legislative and regulatory process, that can produce policies that (a) preserve and enhance an internal market that has been so laboriously achieved, (b) carry on the process of harmonization of national law in an ever more heterogeneous environment, (c) continue to establish and promote economic policies in the sectors where the Community has committed to have such policies, and (d) pursue an appropriate set of non-economic policies (such as environment, consumer protection and worker health and safety) under circumstances in which the Member States, by virtue of their differences, may choose to reserve the right to conduct different cost-benefit operations and exercise different tradeoffs.

5. Charter of Fundamental Rights

I certainly view the Charter of Fundamental Rights project as likewise having been pursued in large part in consideration of the EU’s prospective eastward enlargement and therefore rightly counted as among the Union’s legal response to enlargement. This is not to say that human rights protection did not need to be fortified throughout the Community generally, or that the Charter project would not have been pursued but for the prospect of eastward enlargement. But that prospect furnished an important impetus.

The question nevertheless remains as to how adoption of the Charter will promote the Union’s meeting the positive law-making and policy-making challenges that are specific to the EU accessions that lie immediately ahead. In my judgment, adoption of the Charter does not specifically promote that objective and should not be expected to. Much like the European Human Rights Convention, the constitutional human rights traditions of the Member States, and the Court of Justice’s own unwritten general principles of law, the Charter protects Europeans from human rights harm that may result from the adoption and/or implementation of European Union policies throughout the territory of the Union. It does not supply the Union’s problem-solving legislative agenda or indicate the legislative and administrative means by which the core items on that agenda may most efficiently and effectively be achieved. Interestingly, the "big" question surrounding the Charter seems to be whether and when it will be incorporated as such in the constitutive treaties or otherwise made directly judicially enforceable by the Court of Justice and Court of First Instance. That determination will presumably affect the Charter’s effectiveness, but it will not alter the nature of the Charter’s contribution to European law and policy.

Any list of enlargement-related strategies would be incomplete without mention of redistribution of Community resources. Structural and cohesion funds can be used to bridge the economic gaps that help make task of legislating for an enlarged Union as challenging as it is. This prospect has certainly not been lost on the Union’s leadership. Raising and spending money wisely so as to produce a greater degree of harmony in the economic, political and social conditions across the Member States has been a central element from the beginning of the Union’s Agenda 2000: Prospects for Enlargement. But the Union’s arsenal of legal instruments for enlargement cannot be limited to the expenditure of money--however worthy the accession States and however worthy the projects and purposes that are envisaged, especially as the Union’s revenue-raising capacities are necessarily politically limited.

The peculiar challenge for law in an enlarged European Union will be to maintain the law’s distinctive contribution under new realities. The first step in focusing on solutions to the challenge of legislating and administering for a drastically enlarged European Union is to recognize that what has been done thus far by way of law reform in the shadow of enlargement is valuable but far from sufficient. We are re-entering an era that reminds us that the law the European Union generates, and the processes by which this occurs, are just as important and worthy of our attention as the legal architecture of Europe itself.

Editor’s note: Professor Bermann delivered these ideas as the inaugural address of the EUSA EU Law Section’s first meeting on June 2, 2001 at the ECSA Conference in Madison, Wisconsin.

George A. Bermann is Beekman Professor of Law and Director, European Legal Studies Center, Columbia University School of Law, and an elected member of the EUSA Executive Committee.