p. 32The foundations

Contrary to many other polities, the EU’s institutional system was not brought about by a dramatic revolution inspired by a clear doctrine. The long decade between the end of the Second World War and the signature of the Treaty of Rome in 1957 was, in hindsight, a period of trial and error, which gave rise to an unprecedented system via the accumulation of partial compromises. Contrary to what the official historiography would lead us to believe, what is now called the ‘Community method’ (Dehousse 2011) was not born overnight; there was no sudden conversion of European elites to Jean Monnet’s plans. Between 1948 and 1957, European leaders were actually torn between competing visions of Europe’s future, each reflecting a particular institutional model.

For example, the ‘constitutional approach’ was a widely shared objective in the founding years. At the Congress of Europe held in The Hague in May 1948 (a private initiative gathering dozens of European movements that had mushroomed in the two preceding years), many voices supported the idea that a European constitutional assembly should be convened to define the basic rules governing relations among European countries. The institutional conceptions of these federalist movements were largely inspired by the American model; the idea that Europe should have its own ‘Philadelphia’¹ was their leitmotif. In the following months, however, a clear opposition emerged between governments supporting a federal vision and those conceiving Europe’s future in more classical intergovernmental terms. This divide, which echoed the debates of the interwar period, showed that Europe was not ready to adopt anything like the United States’ (US) Constitution (1787). Ultimately, in May 1949, ten European governments managed to sign the Treaty establishing the Council of Europe (see Chapter 1). Even before it was signed, however, it was clear for most of its members that the consensus on which it was based was so narrow that it would end in deadlock.

The Schuman Declaration of May 1950, which launched the idea of a more modest European Coal and Steel Community (ECSC), signalled a change of strategy; the states most interested in deeper European cooperation shifted to an apparently more modest functional approach, confining cooperation to a limited field. Although very classical in some respects, this approach was founded on an original institutional blueprint. The cornerstone of ECSC institutional architecture was the delegation of powers to an international High Authority, the independence of which was guaranteed, and to a court with much wider powers than other international jurisdictions. In addition, the governments gathered in the Council of Ministers could renounce the classic international practice of unanimity in favour of qualified majority voting (QMV). By virtue of these ‘supranational’ elements (a word used in the ECSC Treaty), the ‘Community model’ entailed greater transfers of powers than other international organizations. It nevertheless fell short of a federal model, given, among other things, the absence of a direct link to the people (although there was a provision in the Treaty for member states to create such a link—see Chapter 6).

p. 33↵A hybrid institutional system always gives rise to competing interpretations and the Community model was no exception. Many supporters of the functionalist approach hoped that integration would be a dynamic process—that cooperation would extend to other fields as a result of issue linkages and spillover effects, so that, ultimately, the functionalist approach could lead to the adoption of a real constitution. In the months following the signing of the Paris Treaty, the dynamics of European integration did, in fact, seem to accelerate. In an international context marked by the intensification of the Cold War, the six member states of the ECSC (‘the Six’) agreed to try to extend their cooperation to the military field and negotiated a new Treaty establishing a European Defence Community (EDC). In the framework of these negotiations, the governments of the Six also agreed to set up a constitutional assembly (prudently called an ‘ad hoc assembly’) to define a broader institutional framework inspired by federal principles, referred to as the European Political Community (EPC). In March 1953, the assembly chaired by Paul-Henri Spaak adopted a draft constitution inspired by federalist principles (Griffiths 2000). However, this constitutional phase was short-lived. Only a year later, the French National Assembly rejected the EDC Treaty following a heated public campaign and the EPC sank with it. The ‘relaunch’ of European integration at the Messina Conference and the subsequent creation of the European Economic Community (EEC) in March 1957 were, in part, a functionalist reaction to this failure.

The negotiations that gave rise to the Treaties of Paris and Rome were but the first in a long series of diplomatic bargains between the member states. They took the classic form of IGCs, rather than constitutional assemblies. Formally, the governments never departed from the canons of international practice. The outcome, arrived at through discrete and complex negotiations, was not a constitution, but a treaty agreed upon by ‘the High contracting parties’. As such, it could enter into force only after being ratified by all member states. In these conferences, in which each country was represented by a delegation of government officials, mixing diplomats and experts drawn from economic ministries, everything had to be decided by consensus. National experts gathered in working groups to examine the details of the arrangements, while the heads of delegation—usually senior diplomats—met regularly to assess the progress of the negotiations and settle the most sensitive issues in close consultation with foreign ministers. In addition, the heads of state and governments met bilaterally or multilaterally to provide the political impetus and address the most contentious issues. Mindful of the political crisis generated by the ratification of the EDC Treaty, the national delegations worked in closer contact with national parliamentarians, party leaders, and interest groups during the Brussels IGC of 1956–57. But the conference nevertheless remained classically intergovernmental. Its deliberations took place behind closed doors and were almost entirely invisible to ordinary citizens, while the Community institutions merely acted as outside advisers.

In retrospect, this founding decade seems characterized by a constant oscillation between a ‘constitutional way’ and a functionalist approach. In the end, the repeated p. 34↵failures of the former consolidated the latter (Magnette 2005a). The governments of the member states accepted some limitations on their sovereignty in order to improve the efficiency of their cooperation. But governments nevertheless retained control of the process of institutional change.

The consolidation of the Community model

The first decade after the foundation was a period of sharp differences among the Six, which paradoxically strengthened the European Community (EC)’s institutional system. Several governments still hoped to expand the scope of their cooperation and to strengthen the Community institutions, whereas France, under President Charles de Gaulle, was fundamentally concerned with preventing encroachments on its sovereignty. In these circumstances, the Community model was subjected to both centripetal and centrifugal forces.

In the early 1960s, two well-known episodes of the European saga—the rejection of the Fouchet Plans and the ‘empty chair’ crisis—showed that any attempt to alter the balance between intergovernmentalism and supranationalism in the Community model would be opposed by at least one member state. In 1961–62, de Gaulle thought that he could reassert French hegemony by creating a political community based on pure intergovernmental cooperation. The Fouchet Plans, named after de Gaulle’s special envoy to European capitals, contemplated both the extension of the scope of European cooperation to military issues and the creation of an administrative secretariat, which was largely seen as a potential rival for the supranational European Commission. These plans were thwarted, however, by the opposition of the Benelux countries (Belgium, the Netherlands, and Luxembourg). Although they had initially feared the supranational High Authority, which they saw as a Trojan horse of French influence, the three small states now realized that a strictly intergovernmental Community would weaken them. In the absence of a supranational agenda-setter and independent monitoring of Treaty implementation, it would be harder to resist French dominance.

Advocates of supranationalism were no more successful. In 1964, the ambitious Commission President Walter Hallstein sought to strengthen the Commission and the European assembly’s powers, believing that he could force France to accept more supranationalism in exchange for a consolidation of the common agricultural policy (CAP). But Hallstein had underestimated de Gaulle’s capacity for resistance. France deserted Council meetings for six months, before imposing on its partners the so-called Luxembourg compromise, a declaration (released only in the form of a press release) that stated that any member state could block any proposal that threatened its ‘vital’ national interest. The agreement made the use of QMV practically impossible, thereby significantly reducing the Commission’s room for manoeuvre (see Chapter 5).

Similarly, the European Court’s foundational case law, which gave the Community legal order a quasi-constitutional authority, was paralleled by the reinforcement of p. 35↵intergovernmental influence over decision-making. In a series of landmark cases, and in spite of opposition from several governments, the Court ruled that European law could be invoked directly by private plaintiffs (direct effect) even where this was not explicitly contemplated by the Treaties, and that it should enjoy supremacy in case of conflict with national law (see Chapter 7). This jurisprudence enhanced the pressure on national governments, which now realized that decisions taken in common could limit their freedom of action. In this new legal context, the Commission’s prerogatives took on a new dimension; its powers to set the agenda upstream and to monitor the implementation of EU decisions by the national administrations downstream seemed less innocuous (Stein 1981). Moreover, during the same period, a number of Court of Justice rulings enabled integration to proceed irrespective of deadlocks in the Council (Dehousse 1998). However, these developments in the legal sphere were compensated for by the evolution of policy-making structures. The creation of the Committee of Permanent Representatives (Coreper) and the gradual extension of its tasks enabled governments to control the Commission’s power of initiative (see Chapter 14). Their influence in the executive phase was made possible by another ad hoc development, the establishment of an ever-denser network of committees composed of national civil servants to ‘assist’ the Commission—a phenomenon known in Eurospeak as ‘comitology’ (Pedler and Schaefer 1996; Joerges and Vos 1998). Like the Luxembourg compromise, these developments confirmed the Community’s partly intergovernmental character, in the face of an ever-stronger legal supranationalism (Weiler 1981).

The 1960s was thus a paradoxical period in terms of institutional development. Divergences between member states prevented any major amendment of the Treaty, except for the 1965 decision to merge the institutions of the three European communities—the ECSC, the EEC, and the European Atomic Energy Community (Euratom)—without altering their powers. Nonetheless, crucial developments did take place during this same period; the ‘constitutionalization’ of the Community legal order compensated for the member governments’ stronger grip over the policy process. Ultimately, these tensions ended up strengthening the original matrix; the Community model demonstrated its stability by resisting any attempt to strengthen either intergovernmentalism or supranationalism.

The ‘relaunch’: Institutional change through task extension

The two decades that followed saw considerable expansion of the European Community. Three consecutive enlargements doubled the number of member states, rendering decision-making more difficult. At the same time, they also created demands for new policies, which ended up pushing in favour of substantial changes.

The 1970s were perceived as a period of relative stagnation resulting from a severe economic crisis and the institutional strains created by the first enlargement. However, the resignation of Charles de Gaulle created a political climate more favourable to change. The Treaty revision agreed in Luxembourg in 1970 endowed the EC with p. 36↵its own financial resources, thereby ensuring the financing of the CAP. It also saw an increase—the first in a long series—in the powers of the European Parliament (EP), which was given a significant role in the adoption of the EC budget. At the Paris Summit of 1972, heads of state and government decided to ‘relaunch’ the integration process by developing policies more in tune with citizens’ expectations, such as environmental and consumer protection, and regional development. This decision served to justify the development of a series of policies that went beyond economic integration.

While reflections on the institutional development of the Community were not entirely absent, they failed to trigger any real momentum. At Monnet’s instigation, the meetings of heads of state and government were institutionalized with the creation—amid some controversy—of the European Council (Wessels 2016). A 1976 decision made the direct election of members of the European Parliament (MEPs) possible, realizing an idea first mooted three decades earlier at the Hague Congress. The first directly elected Parliament rapidly pressed for bolder reforms. In 1984, it presented a ‘Draft Treaty on European Union’ that was clearly inspired by federalist ideas. While several of the ideas contained in that project were picked up in ensuing reforms, it was not even discussed by most of the national parliaments to which it had been sent for consideration.

The Parliament’s pressure in favour of institutional reform was, however, exploited by another actor. As soon as Jacques Delors was nominated President of the Commission in 1985, he began searching for a new strategic concept capable of imparting a fresh dynamic to the integration process. Many of the options contemplated at the time—monetary union, joint defence, or institutional reforms—seemed out of reach, because each faced opposition in some national capitals. Delors and his aides therefore settled for a seemingly more modest plan: the completion of the internal market by the end of 1992 (Delors 2004). As much of the preparatory work had already been done by the previous Commission, a road map detailing a long series of directives aiming to remove obstacles to free movement was presented to the European Council within a few months. The strength of this approach was that it did not appear to require any major transfer of legal competence or budgetary resources to the European level. Moreover, the emphasis placed on the concept of mutual recognition of national standards, developed by the Court of Justice of the EU in its famous 1979 Cassis de Dijon ruling,² gave the programme a deregulatory flavour. This idea appealed to the UK’s Conservative government, headed by Margaret Thatcher, which strongly opposed further transfers of power to the Community (Dehousse 1988).

Having secured the member states’ support for its 1992 programme, the Commission was then in a good position to obtain the Treaty changes that were needed to facilitate its implementation. A large majority of governments supported the Commission’s agenda in a vote (the first ever) during the 1985 Milan European Council, where it was decided to convene an IGC. Despite the initial furore among those countries that opposed such a move (the UK, Denmark, and Greece), fears were soon p. 37↵allayed by the pragmatic nature of the proposals tabled by the Commission, which for the most part focused on making it possible to implement the 1992 programme (De Ruyt 1987). The 1985 IGC was both short and largely structured by the Commission’s proposals—two features that were absent from the IGCs that were to follow (Moravcsik 1998). The 1986 Single European Act (SEA), which it elaborated, contained mostly incremental changes: new tasks for the Community (environmental, research, and regional development policies); a closer association of the EP with law-making through the establishment of the so-called cooperation procedure (see Chapter 6); and, above all, the shift to QMV for much of the 1992 legislation. The harvest seemed meagre to the pro-integration camp (Pescatore 1987), but it was sufficient to inject the EC with a new dynamic. Thanks in part to the open texture of several new legal bases, a number of new policy areas were able to develop, which themselves conveyed to European people the feeling that the Community could influence their daily lives.

This episode suggests that when the Commission, acting as a ‘policy entrepreneur’, is able to ‘soften up’ the relevant policy community by getting it used to new ideas, it may then make the most of opportunities to push forward its preferred reform proposals (Kingdon and Thurber 1984). This dynamic was confirmed in the lead-up to economic and monetary union (EMU). When it appeared that the single market was making substantial progress, the Commission began to argue that it needed to be supplemented by greater coordination of macroeconomic policies; otherwise, the liberalization of capital movements would lead to major disruption (Padoa-Schioppa et al. 1987). Because monetary union had little chance of materializing without the support of central bankers, Delors convinced the European Council to create a working party, made up of the governors of the central banks, to discuss the establishment of EMU. This committee, chaired by Delors himself, proposed a gradual move towards a single currency (Committee for the Study of Economic and Monetary Union 1989), endorsed by the European Council in June 1989, despite British reservations (compare Box 3.7 in Chapter 3).

While there is a scholarly debate as to who shaped the Committee’s conclusions,³ it is fair to say that the IGC that led to the Maastricht Treaty (1991) largely followed the Committee’s blueprint on EMU, emphasizing the establishment of a European Central Bank (ECB), the autonomy of which was protected by the Treaty, and a process of economic policy convergence that was regarded as indispensable prior to the creation of a single currency. But it did not stop there. In the meantime, the collapse of communism in Eastern Europe and the rapid move towards German unification completely modified the context in which the integration process was taking place. Eager to anchor Germany firmly in Europe, French President Mitterrand and German Chancellor Kohl suggested convening a second IGC to deal with the creation of a ‘political union’ (that is, a pact on non-economic policies and institutional questions), but achievements in this framework were less spectacular. Incremental changes were made to the Community’s institutional structure: more majority voting, the opening of new areas to Community intervention, and the advancement of p. 38↵the legislative prerogatives of the EP, notably through the creation of a codecision procedure (see Chapter 6). In addition, the EP was granted the right to approve the appointment of the Commission, a power that went largely unnoticed at the time, but subsequently proved to be of great importance. In contrast, the member states did not consent to any delegation of power in relation to issues of ‘high politics’, such as foreign policy or immigration policy. The newly created EU was therefore given a complex structure, the EC being supplemented by two intergovernmental ‘pillars’ in which the role of supranational institutions was strictly limited. In the view of the masters of the Treaty, ‘political decisions’ were therefore to remain primarily in the hands of national governments.

This mixed result confirmed the experience of the previous decades: transfers of sovereignty are more readily accepted when they are approached in a functional manner, the emphasis being on substantive issues. When institutional issues are handled separately, however, negotiations are likely to end up with a lowest-common-denominator result, as subsequent IGCs were to confirm.

Adjusting the institutional system

After the monumental changes decided in Maastricht and the intense debates that followed, a period of relative institutional stability might have been expected. In fact, the opposite happened; two IGCs took place in the second half of the 1990s, leading to the Treaties of Amsterdam (1997) and Nice (2000). Even before the latter was ratified, pressure for further reforms led to the convening of a European Convention, which drafted a ‘Treaty establishing a Constitution for Europe’, signed in Rome in October 2004. How can one account for this acceleration in the pace of change?

Contrary to the previous phase, this period was not characterized by major new projects. The difficult ratification of the Maastricht Treaty had revealed widespread dissatisfaction within the European public and generated a ‘spirit of subsidiarity’, with many European leaders arguing that the EU should resist the temptation to regulate all matters from Brussels and leave more discretion to national authorities. Instead, institutional change was motivated by two concerns: a desire to respond to criticism of the EU’s ‘democratic deficit’ by bringing the EU institutional architecture closer to European democratic standards; and the need to prepare for the enlargement to Central and Eastern European countries (CEECs).

Meeting these two challenges proved tricky, given the considerable heterogeneity of member states’ preferences. The divergences between these preferences largely explain the sustained pace of Treaty changes (Moravcsik and Nicolaïdis 1999). The Maastricht Treaty had, in fact, foreseen the 1996 IGC. Forced to accept the ‘pillar’ structure by a minority of their peers, several pro-integration governments obtained the guarantee that the institutional setting would be revisited four years later. This scenario was repeated in Amsterdam in 1997 and in Nice in 2000. Unable to reach a comprehensive agreement, but unwilling to abandon their claims, a group of governments ensured that the process of institutional revision continued.

p. 39↵Democratic concerns were not the main difficulty. As will be seen, European governments tend to share a vision of democracy in which the parliamentary element plays a key role, which makes compromises easier. Indeed, from the SEA to the Lisbon Treaty, the most stable trend in institutional change has been the increase in the powers of the EP.

The reforms aiming to help the EU to adjust to its new membership have proved much more controversial. This problem was unprecedented: whereas earlier enlargements had meant incorporating a maximum of three countries at a time without altering the initial balance between large and small states, the 2004 enlargement involved ten countries, of which nine were small states. Mechanical adjustments were therefore not sufficient; they would have led to an excessive increase in size of both Commission and the EP, and given too much influence to the small states in the Council. Since unanimity was required for Treaty changes, the pro-integration camp, which found support in the Commission and the Parliament, argued that consolidating the institutional structure was a necessary precondition of enlargement. In contrast, the CEECs, having recently recovered their sovereignty, were anxious not to have it diluted in the EU. Other countries, such as the UK, Denmark, and Sweden, hoped that enlargement would counterbalance the integrationist drift of the previous decade.

The problem was addressed unsuccessfully during the Amsterdam and Nice negotiations. The large countries tried to reassert their influence to avoid being constrained by coalitions of smaller states, while the latter resisted attempts to reduce their weight in the EU institutions. The classic federal dilemma between equality of states and equality of population became tenser than ever. Because the EU regime is based on a complex balance of state representation in the three poles of the institutional triangle, changes made at the level of one institution rendered adaptations indispensable in the others, as well as in the balance of power among the institutions. The large states were willing to abandon their right to appoint a second Commissioner (see Chapter 5), but only to the extent that this loss was compensated by having their positions strengthened in the two other institutions. This crucial issue could not be solved in Nice. After protracted bickering, a complex compromise was reached, including a redistribution of seats in the EP, the eventual downsizing of the Commission, and a re-weighting of votes in the Council. This agreement was the focus of intense criticism, however, so that these issues re-emerged as one of the central contentions of the Treaty reform negotiated in the years that followed.

The ‘constitutional’ moment

On 9 May 2000, Joschka Fischer, then German Minister for Foreign Affairs, made a speech in Berlin, calling for the adoption of a European constitution—and thereby sparking intense debate on the institutional future of the EU. In the ensuing months, the leaders of most member states made their own views public.

p. 40↵Those who advocated transforming the procedure of Treaty change made a twofold argument: in terms of substance, the EU’s institutional system had to undergo thorough reform before the next enlargement (Dehaene et al. 1999); in terms of process, the Nice Summit had demonstrated the limits of the IGC process—hence more inclusive and more transparent methods were required. The precedent of the first Convention—set up in 1999 to draft a Charter of Fundamental Rights—offered an alternative model consistent with a ‘constitutional’ perspective on the issues at stake, given that it comprised European and national parliamentarians, and operated in public. The assumption underlying this argument was that a new process would produce a new outcome. One year after the bitter compromise reached in Nice, the governments of the member states seemed to subscribe to this idea when, at the Laeken European Council (2001), they agreed to create a new body to prepare a blueprint for the next IGC and to reflect, among other things, on the constitutionalization of the EU. The European Convention comprised a broader range of actors, a number of whom were independent from national governments (the two Commissioners, most of the MEPs, and MPs drawn from the domestic opposition, making up about a third of the members). Half a century after its foundation, the EU appeared ready to resume the constitutional work abandoned after the abortive attempts of the 1950s.

Of course, supporters of the convention model had a vested interest in this process. The EP and the Commission which, until then, were deprived of a formal role in Treaty reforms, expected their representatives to be associated as full and equal partners with governments. Likewise, the representatives of the smaller member states had discovered in previous IGCs that their ability to shape the final outcome of the negotiations was limited (Moravcsik and Nicolaïdis 1999): while possible in theory, a veto was extremely costly. They hoped that the framework of the Convention (in which government representatives would have to negotiate with other actors) would offer broader opportunities to forge alternative coalitions. Obviously, expectations of this kind were strongest among those governments who wanted to go beyond the status quo—namely, the Benelux countries, Finland, Greece, and Portugal. On the other side of the fence, governments from bigger member states (with the exception of Germany) were less inclined to change the rules of the game.

The setting up of the Convention was therefore accompanied by safeguards enabling governments, acting collectively and individually, to remain in control of future developments. The Convention was a preparatory body only insofar as all decisions remained with the IGC and national representatives made up three-quarters of the membership. Finally, the Convention’s President was appointed by, and reported to, the European Council. However, it was free to organize its own work and it had to deliberate in public—a factor that, according to students of constitution-making, renders the crude expression of naked interests more difficult (Elster 1998). The Convention was thus a middle ground between the intergovernmental tradition and the constitutional approach that had been supported by the federalist movements since the 1950s.

p. 41↵From his inaugural speech on, former French President Valéry Giscard d’Estaing dwelled on the originality of this experience and tried to convey what he called a more genuinely deliberative ‘Convention spirit’ (Giscard d’Estaing 2002: 14). To some extent, this strategy was successful, at least in the first part of the Convention’s work. The ‘conventioneers’ took the time to deliberate on each and every issue in plenary sessions, and to examine the most technical issues in more detail within smaller working groups. The flexibility of this organization, the absence of obvious pressures from governments, and the collective willingness of most members to reach an ambitious outcome, as well as the ‘constitutional ethos’ surrounding their work, all combined to make compromises possible on several issues that former IGCs had been unable to settle. These included the abolition of the pillars, the consolidation of the Treaties, the EU’s legal personality, the simplification of decision-making procedures, and the incorporation of the Charter on Fundamental Rights into the draft Constitution (Magnette 2005b). True, none of these elements was totally new and original, and the legal clarity of the text was often disputable (Jacqué 2004), but the Convention nevertheless succeeded where the three previous IGCs had failed.

By the autumn of 2002, however, when discussions on institutional issues were initiated, the pendulum had moved back to traditional forms of diplomatic bargaining. Most government representatives started openly to defend their briefs, to build coalitions among themselves, and to use thinly veiled threats of vetoing in the ensuing IGC. Neither political parties nor institutional representatives were able to develop coherent positions, except in a few specific instances. Instead, two classic cleavages dominated the debate (Magnette and Nicolaïdis 2004): the traditional opposition between ‘federalist’ and ‘intergovernmentalist’, and that between large and small countries. With the exception of Germany, large countries sought to strengthen the role of the European Council, and thereby the role of governments in the decision-making process, while most small states defended supranational institutions and the rotating presidency of the Council. The final compromise, reached through typical intergovernmental negotiation (with MEPs kept on the sidelines), largely reflected a Franco–German proposal tabled in January 2003. When a change was supported by a very large majority, a government that was isolated on points that could not easily be presented as non-negotiable ‘red lines’ (as was the UK on the incorporation of the Charter of Fundamental Rights) was generally forced to make unilateral concessions.

The Presidium played an important role in shaping the final outcome; being a collective organ rather than a single presiding member state, it could present its viewpoints as ‘the best possible compromise’. Potential vetoes were forestalled and actual ones ignored—such as the Spanish and Polish opposition to the idea of a double majority (50 per cent of states; 60 per cent of population) that would replace the system of weighted votes agreed on in Nice. These tactics succeeded in bringing about a ‘consensus’ that might have eluded a traditional IGC. But they also left a decidedly bitter taste for many delegates. Unsurprisingly, the governments of Poland p. 42↵and Spain, the objections of which had been ignored, fought back. The ensuing IGC rejected some of the Convention’s innovations and added new ones.

As regards substance too, continuity was the main theme of the eventual compromise, even though the reference to a Constitution suggested a radical break with the past. Not only did the ‘Constitutional Treaty’ require ratification by all member countries before it could come into force, but also intergovernmental negotiations and unanimous ratification were deemed necessary for future modifications. Many of the innovations contained in the text had actually been discussed in previous IGCs and the elements that consolidated the supranational institutions (more QMV and more codecision) were similar to those of earlier inter-state bargains. Above all, several of the changes introduced, from the full-time President of the European Council to the status of the ‘double-hatted’ Foreign Minister (at the same time a member of the Commission and accountable to the European Council) showed a clear reluctance to allow the development of a strong executive at the European level.

Despite (or perhaps because of) its fundamental ambiguity, the Constitutional Treaty became a source of concern in some circles, particularly among those who felt left behind by an integration process that did not seem to respond to their day-to-day problems. These feelings of alienation appear to have played a major role in the rejection of the Treaty in France and the Netherlands, where referenda were organized (Dehousse 2005; Sauger et al. 2007). This was not the first time that a proposed reform had been rejected in a referendum: the Danes, at the time of the Maastricht Treaty, and the Irish, on the occasion of the Nice Treaty, had done so in the past. Yet the shock was particularly brutal in this case. Not only did the failure of the draft Constitutional Treaty leave the Union with the institutions carved in Nice, which many argued could not work efficiently, but also the campaign had brought to the fore a deep mistrust vis-à-vis European institutions that appeared too remote to be controlled. To make things worse, given the intensity of the debate in countries in which referenda were held, it could hardly be argued that the negative outcome was to be attributed to a lack of interest. At the same time, no threat of exclusion was deemed to be possible against France or the Netherlands, as founding members of the EU. These elements are recalled here for they largely conditioned the way out of the crisis. On the one hand, the Commission reverted to a functionalist rhetoric, advocating an emphasis on a ‘Europe of results’ (Barroso 2007); on the other, in his successful bid for the French presidency, Nicolas Sarkozy announced that he would, if elected, seek his partners’ support for a ‘modifying treaty’ that, while abandoning the state-like symbolism of the Constitutional Treaty, would preserve most of its substance. Having rallied a large majority of voters, he could legitimately claim to have been given a mandate to implement this solution, which the other member states were broadly happy to accept.

The Lisbon Treaty therefore appeared as a return to the logic of incremental change that had dominated the history of European integration and marked the end of the short-lived ‘constitutional moment’. Technically, it consisted of amendments to its p. 43↵forerunners. In substance, it extended earlier reforms: more majority voting in the Council, more powers to the EP, and the completion of the transfer of justice and home affairs (JHA) to the ‘first pillar’, as well as an attempt to improve synergy between the ‘Community method’ and the policy regime applied to foreign policy. All are certainly important reforms, but none appeared to have been designed to achieve a major transformation of the EU policy system. While typical features of the Community method were extended, the newly created President of the European Council was seen as a potentially powerful rival of the Commission. Once more, ambiguity appeared to be one of the essential attributes of compromise.

The weight of state interests

That institutional change has largely been shaped by state interests should not come as a surprise. After all, when the EU was created, it took the form of an inter-state agreement that, like most treaties, could be modified only with the assent of all parties. Economic interests played a key role in this process, because the states saw the construction of Europe as a means to reassert their influence in an increasingly interdependent world (Milward 1992). Domestic concerns clearly impinged upon governments’ attitudes whenever reforms were contemplated. France’s farming interests, Germany’s industries, and the need to foster free trade for export-oriented Benelux countries featured prominently in the European agenda of their respective governments. The most important stages of the integration process have therefore been associated with the key interests of the member states. Institutional changes have generally responded to an instrumental logic rather than to some kind of grand design. Governments, having defined a series of objectives, bargained to reach ‘substantive agreements concerning cooperation, and finally selected appropriate international institutions in which to embed them’ (Moravcsik 1998: 5).

p. 46↵The contours of institutional evolution have also been shaped by states’ desire to retain some control over the process. Intergovernmental bodies were thus given a central role: the position of the Council of Ministers in decision-making was consolidated by structures such as Coreper, the web of intergovernmental committees, and the European Council. More recent developments, such as the Maastricht pillar system or the creation of the High Representative for foreign policy, were clearly inspired by reluctance to relinquish power in sensitive areas. Representative concerns are apparent in the design of every European institution, including the supranational ones; nationals of all member countries sit in the Commission and on the Court’s bench. Balance among states has certainly been a key point in most institutional negotiations and, from the outset, QMV within the Council of Ministers was based on a system of weighted votes balancing the equality of states and demographic size. The three biggest states made sure that they would need only one ally to block a decision, while preventing the three small ones from forming a blocking minority. Fifty years later, the same strategic concerns informed the lengthy pre-enlargement discussions; the debates on the composition of the Commission (should it include one national of each member state, or should it be reduced in size?), on the presidency of the Union (should the system of rotation among member states be maintained, or should it be replaced by a permanent chair?), and on the reform of QMV (should the system of weighted votes be maintained, or should it be replaced by a more proportional double majority?) were all clearly dominated by the governments’ ambitions to maximize their (individual and collective) weight in the EU institutions.

While the emphasis on states’ interests has occupied a central place in the analysis of European integration, it should not blind us to the importance of other factors. On several occasions, states have decided that their interests were better served by mechanisms that could facilitate their negotiations (the Commission’s monopoly of initiative), reduce transaction costs (majority voting in the Council), or ensure that joint decisions would be implemented fairly by everyone (the enforcement powers of the Commission and the Court). Furthermore, supranational actors have often used their (formal or informal) powers to foster their own interests as institutions, as discussed next.

The role of institutions

Understood in their broadest sense as the rules that structure political relationships (Steinmo 2004), institutions have also considerably influenced the dynamics of change. This point is quite clear in the case of formal rules: the requirement of unanimity for any amendment to the Treaties means that governments must take the final crucial steps in the negotiations. They can also use the threat of non-ratification by their legislature to obtain concessions from their partners. Such constraints largely explain both the piecemeal character of the reform process and its deep ambiguity. Likewise, the change in the rules of the game reflected in the setting up of the p. 47↵Convention allowed for the development of a new dynamic, which largely explains why the Convention could reach an agreement on issues where previous IGCs had failed. There are also informal rules affecting the way in which actors behave (see Chapter 14). Smaller countries know that the veto power they enjoy can be used only sparingly—and preferably not without allies when a major reform is at stake. This explains why Belgium in Nice, or even Poland at the 2004 IGC, ended up accepting agreements that they had forcefully opposed.⁴

While these principles are valid in many international regimes, the weight of institutions is of particular relevance at EU level, because of the political clout enjoyed by its supranational organs. They are endowed with a substantial degree of autonomy and thus are naturally inclined to promote interests of their own. As was seen earlier, in its rulings on direct effect and supremacy, the Court of Justice has conferred a federal structure on the European legal order. In so doing, however, it has considerably increased its own role in the integration process (Dehousse 1998). The Parliament’s stubborn insistence on the need to address the ‘democratic deficit’ was, of course, underpinned by its eagerness to improve its own institutional position, and this helped it to secure important changes as regards the appointment of the Commission (not least with the invention of the Spitzenkandidaten system in 2014) or the codecision procedure.⁵ Likewise, we have seen that even if it is deprived of any formal role in IGCs, the Commission can at times shape the contours of the final agreement by acting as a policy entrepreneur or as a mediator between national preferences. The SEA is the best illustration of this kind of dynamic. One year before the conclusion of that treaty, several governments had opposed any extension of majority voting in the so-called Dooge Committee. It was the Commission that developed the idea that enabled a breakthrough, and it did so by drawing inspiration from principles laid down in the ground-breaking 1979 Cassis de Dijon case. Thus even if one accepts the centrality of inter-state negotiations in the cumbersome process of institutional change, one must recognize that state preferences are not static and can be influenced by the action of supranational institutions (Dehousse and Majone 1994).

When do ideas matter?

In addition to state interests and institutional constraints, ideas can, at times, help to shape the EU’s institutional system. All of the actors of the EU political system have their own views of what the system should look like. In some cases, those views derive from the actors’ broader perceptions of the nature of the EU. Since its origins, two competing interpretations of the ‘meaning’ of European integration have proved very significant. The federalist doctrine ‘is still required to account for the general institutional structure of the EC’ and particularly ‘its quasi-constitutional form’ (Moravcsik 1998: 153). Whereas this perspective remains influential in some circles, particularly in the founding member states; others rather see the EU as a functional organization, designed to maximize states’ economic interests in an increasingly interdependent p. 48↵economy—a view that is also widespread in Nordic and Central European countries. These two ‘models’ are, in key respects, the poles of the debate. They structure, positively or negatively, the ongoing discussion on the EU’s raison d’être, very much like the ‘federalist’ and ‘anti-federalist’ doctrines that dominated constitutional debates in the US for decades. As such, they bear their own institutional patterns; governments may support an institutional reform that defies their own short-term interests—such as when the Benelux countries defended the extension of the EP’s prerogatives, although they are less overrepresented in this institution than in the Council—because it is part of their broader vision of the EU.

States preferences will very often also reflect their own national political culture. When German leaders support the parliamentarization of the EU’s regime, they tend, explicitly or not, to project the constitutional balance of the Federal Republic (Kohler-Koch 2000). French politicians, on the other hand, tend to perceive the European Council as a collective ‘head of state’ and to consider the Commission–European Council duopoly as a European equivalent of the Fifth Republic’s dualist executive. The Nordic insistence on the transparency-enhancing mechanisms of the EU system (the Ombudsman, parliamentary scrutiny, and the publicity of the Council’s deliberations) is another example of importing national traditions into the EU (Grønbech-Jensen 1998).

Although some of these ideas have found their way into the EU Treaties, they remain secondary factors of change. In most cases, the governments’ positions depend on how they perceive their own interests. When the long-term implications of an institutional decision are unclear, however, ideas may be influential. This phenomenon may notably explain the gradual consolidation of the EP’s powers—one of the most original aspects of the EU’s institutional evolution, strengthened even though it may undermine the influence of member states. Some governments were prompted to support this consolidation by an ideological bias in favour of parliamentary democracy (Dehousse 1995); others made what they considered symbolic concessions with no foreseeable impact on their interests (Pollack 1997; Moravcsik 1998; Rittberger 2001). Needless to say, governments’ expectations can, at times, prove misplaced. One of the ‘minor’ concessions made to parliamentary orthodoxy in the Maastricht Treaty—the conferral on the EP of the right to approve the appointment of the Commission—allowed the assembly to gain significant leverage over the European executive (Magnette 2001). In situations of crisis, notwithstanding their reservations, they may be constrained to adopt suggestions made by supranational actors; hence the ‘hardening’ of macroeconomic policy cooperation decided in 2011–12, for instance, essentially consisted of reforms suggested by the Commission in the previous decade and rediscovered by ‘creditor’ countries in search of better monitoring devices (Dehousse 2016). Similarly, the ‘democratization’ narrative promoted by the EP in its strenuous defence of the Spitzenkandidaten system proved to be hard to oppose (Garcia and Priestley 2015).

When they think of the EU’s overall institutional order, governments tend to reason, like the lawyers of the EU institutions, in the conceptual terms with which they p. 49↵are familiar. This reasoning has facilitated agreement on reforms designed to ‘simplify’ the institutional and legal order of the EU by making it more compatible with classic constitutional canons. Like most other polities, the EU oscillates between institutional complexity prompted by pragmatic concerns to accommodate divergent interests and institutional rationalization driven by the leaders’ will to clarify the rules of the game (Olsen 2002). This oscillation may help us to understand why, at the turn of the century, EU leaders collectively flirted with the ‘constitutional’ idea, only to abandon it as soon as it appeared that it met with sustained opposition in some countries. All in all, therefore, the ‘ideational’ stream can significantly shape the process of institutional change.