Embracing an enlarged European Union

The author of this essay will attempt to discuss and evaluate the statement that a 'multi-speed' Europe exists and that it would be essential for embracing an enlarged European Union. And also whether or not this concept is compatible with the concept of 'an ever-closer union'.

The points that will be covered by this essay will include: the significance of the Treaties and the aquis communitaire on European integration; the issues and events that have effected integration; the impact future enlargement may have on European union; an evaluation on whether or not 'Multi-speed' integration is occurring; and whether the concept of Multi-speed is compatible with the concept of 'an ever-closer union'.

It was the Treaties signed on 25th March 1957 in Rome that brought into existence the European Economic Community (EEC) and the European Atomic Energy Community (Euratom) and set a new and ambitious pace towards European integration. The main aims of the Community were to establish a common market1, to abolish trade barriers by setting up a customs union2, to promote closer relations between member states, to improve the standard of living, and harmonization of social and fiscal policies.

The Treaties represented an ideal goal towards a uniform and united Europe without internal boarders, or barriers culturally and economically. But the movement towards integration has been affected by many problems such as the Member States differing approaches to European co-operation, conflicts of interests erupting between Member States and the Community, the cost of integration, and social divides. Such issues have led to compromises in the Treaties, and changes in agreement.

But since the ratification of the Treaty of the European Union (TEU) and the creation of the European Union in 1993, the process of integration has occurred at a breathless pace despite controversial issues along the way such as the Economic and Monetary Union (EMU) and the collapse of the Exchange Rate Mechanism (ERM). Such things have not stopped other European Members from applying to join the EU and Membership is set to grow from 15 to 25 in 2004.

The 1999 Treaty of Amsterdam and the Treaty of Nice 2000 have both emphasised institutional reforms to facilitate enlargement, and the integration at different levels. However there are huge economic and political variations between the richer 'core' Members (France, Germany and the Benelux countries) and the new Member states, and this will inevitably make the task of integration a lot more challenging, maybe impossible. But some argue that there is a Multi-speed Europe (a notion introduced by Leo Tindemans).

The idea is that integration is taking place at a variable or differentiated pace from Member state to Member state, with countries joining the EU at different times and at different levels, it is also implied that those Members states unable to advance the objectives of the Community will at a later stage catch up with those that are able to. In December 2002 a historic summit in Copenhagen will conclude which ten Member states will succeed in their application to join the EU in 2004. Candidates likely to succeed are the Czech Rep. , Cyprus, Malta, Poland, Hungary, Slovenia, Latvia, Estonia, Slovenia and Lithuania.

Joining the EU has its obvious attractions to national governments in terms of economic development, political interests, and status, but by signing the Treaties those Member states are also legally bound to the conditions and objectives contained in them. In order to join the Member state must be prepared to 'maintain the full acquis communautaire3 and build on it', this commits the Member states to accept all EC law, the contents of the Treaties, and previous and future centralising measures. The aquis communitaire was not formally provided for until the TEU.

But in practice we can see that the acquis communitaire has not always been maintained. For example, when the EEC treaty came into force in 1958 it provided that the transitional period for establishing a common market should be 12 years4. At the end of each 4-year period within that phase the Council was to gather together to vote on a proposal. After two 4-year periods the Council was to switch from unanimous voting to a qualified majority voting (QMV) system. French President De Gaulle rejected the QMV, because he feared France would be out voted on issues like the Common Agricultural Policy (CAP), which France had strong interests in.

France refused to attend any more meetings with the Council until there was a resolution. This came to be known as the 'empty-chair crisis'. A compromise was reached seven months later resulting in the Luxembourg Accords. The Accords allowed a Member to veto against decisions to which they objected to if. As a result of the Accords the supranational status of the EC was severely weakened, many Commission initiatives had been killed off and legislative stagnation continued for the next 17 years until the Single European Act (SEA) 1986.

The Accords allowed the French position to prevail but this was a breach of the Treaty. The SEA set the momentum for the TEU, and its most ambitious plans and reforms towards integration, which included the creation of the EU, the renaming of the EEC to EC, and the establishment of the 3-pillar structure. New policies and forms of co-operation were introduced; such as the common foreign and security policy5, co-operation in the fields of justice and home affairs6, and the institution of the European Monetary Union (EMU).

But Community faced opposition by the UK, Denmark and Sweden over issues like the Economic and Monetary Union (EMU) and the Social Chapter. There was a convergence criteria that had to be fulfilled in order for a Member State to join, so all those that could satisfy the criteria should in principle participate in the EMU under the duty of the Aquis Communitaire. The UK, Denmark and Sweden satisfied the criteria but they refused to join and managed to negotiate opt-outs from it. The costs of introducing the euro, loss of sovereignty, and uncertainty were the main arguments against having it.

The UK once had an opt-out on the Social Chapter but it has now been revoked since the Labour government came into power. An opt-out is a lawful exemption from particular areas of Community activities. They are now provided for in the Protocols under the TEU. If Member states are unable (or unwilling to) fulfil a Community objective they can arrange for an opt-out or derogation7 from that particular area of co-operation. An opt-out can remain permanent, but the Member can choose to opt-in to the activity later on.

A derogation is a temporary exemption from those obligations. 8 In addition to opt-outs of the EMU by the UK, 9 Sweden and Denmark,10 the UK along with Ireland have also opted-out of the Schengen Aquis. 11 If there is an unlawful failure to fulfil the legal obligations of the Treaty the case may be brought before the European Court of Justice (ECJ)12. The Member state concerned will be formerly requested to undertake the obligations within a certain time. If this does not happen the Commission may bring the case to the ECJ.

13 The Member state may be penalised by fines14 or losing certain Community rights. For example, Article 7 introduced in the ToA provides that if the Council finds a clear and persistent breach of the principles set out in Art. 6 by a Member State, it may suspend some of that State's rights under the Treaty. Recently in 2000 the Greek government was fined for failing to close down a waste-tip, which was found to be in breach of EU rules on toxic waste disposal. The government was fined up to 20,000 euros a day until the tip was closed down.

15 To move towards 'an ever closer union' there needs to be a standardisation or harmonisation of legislation and policies through out the EU countries. The harmonisation16 process involves replacing national provisions by rules with contents which are common to all the Member states (but they are not exactly identical rules). Harmonisation is mainly carried out via directives. 17 Directives are only binding as to the results to be achieved, so it's up to the national authorities to decide on the form and methods to achieve the results.

The Community's harmonisation powers has extended beyond trade-related matters to regulate areas like health and safety,18 education19 and environmental protection,20 and into many sectors once seen to be largely or exclusively within Member state jurisdiction. The reason for this is the fact that even though the Treaties regulate the EC's powers some of its powers are implied, for example the ECJ's interpretive doctrine of parallelism. 21 The articles in Part 1 of the Treaty have been used by the ECJ as a way to extend the effect of EC law in Member states.

An example of this can be found in the Casagrande case. 22 The Treaty of Amsterdam has now broadened the scope of harmonisation into the area of criminal law including police, and judicial co-operation, and the approximation of criminal laws in the Member States. 23 But we can see from the past that some harmonisation measures have been met with resistance. For example in 1999 rows erupted over tax harmonisation proposals. The UK was against having it because they feared taxes would rise. But Germany and France were in support of it because they were worried about jobs moving to countries where taxes were lower.

But it was argued that these proposals were anti-competitive and in the long run lead to job losses. Here we can see that conflicting national interests between Member States can lead to a stagnation of integration. One important issue that is affected by integration is the loss of sovereignty, the major area being the relationship between Community law and national law. The Treaties are not explicit in stating Community law is supreme, but it was implied to be under the Community's obligation to ensure the application and enforcement of Community Law.

24 It was the Van Gend & Loos 25 ruling that established that the EC has created a new legal order whereby Member States witnessed a limitation to their sovereign rights. But it was Costa v ENEL26 which established the doctrine of supremacy. This principle of EC supremacy or primacy was also confirmed by Simmenthal27 and refined by Factortame28. As well as upholding the primacy of Community law the Member States also have an obligation to ensure that no national legislation gets in the way of its effectiveness. If that Member state failed to comply they may face a challenge from the Commission under Article 226.

The trend towards greater encroachment of Community powers into national law was however greeted with negative public opinion during the mid-1980's. This threatened to erode the degree of popular consent needed to maintain the Community's move towards integration, so the concept of subsidiarity was introduced into Community law by SEA. Subsidiarity 29 is the idea that the Community should only intervene when the objectives cannot be achieved at national level, and/or a better result can be achieved at a Community level. Subsidiarity can be raised as a defence by the Member State in the ECJ.

30 Subsidiarity can act as an obstacle towards greater integration, an example is the Charter of Fundamental Rights which emphasises this principle under Article 51, and Article 52 goes onto include a derogation clause, which allows limitations to the exercise of those rights and freedoms. So far Europe is split over whether to give the Charter legal status, only 5 EU Members have signed up fully for it. With enlargement unanimity and uniformity with 25 Members this would be even more difficult. The legal systems of most Member states can be divided into two categories: Monist and Dualist.

In Monism both Community law and national law is form part of the same legal order, but Community law takes precedence over national law. With dualism Community law and national law make up two separate legal bodies. Community law can only become part of national law through domestic legislation. When Community law is being applied through these two systems there isn't much difference. But the difference between these two systems is that in dualist systems legislation regarding Community law can be revoked or amended, whilst in a monist system it cannot be.

The UK for example is only legally bound to the obligations and commitments of the Community through the European Communities Act 1972, s 2 (1). Therefore Community law is only supreme for as long as it remains in the statute books. Technically what this means is that if Member States with dualist systems one day decided that they wanted things their own way and divert from closer co-operation then they could if they repealed or amended those related Acts. With most of the candidate Members being relatively poorer than the rest of the EU and being more agriculturally based the Community will have to face the problem of funding subsidies.

The Common Agricultural Policy (CAP) already takes up two thirds of the EU budget and with enlargement the costs will exceed the EU's financing capacity. The proportion of people employed in the poorer Member States is much higher than that of the present EU, so if the CAP were extended to new entrants, the cost would be enormous. As a result the EU has cut down subsidies in the new Member States much to the anger and disappointment of their farmers. We can see here that financial constraints can also have an effect on the level of integration.

In the 1990's the controversy over the 'beef' crisis ignited Britain's anger against the Community for imposing an excessively long and illegal ban on British beef exports even to non-EU countries. The Community was seen as favouring other European farmers and breaking the principles of a common market. This may even have a more profound effect on poorer Member States if such an event occurred and also considering that there is an imbalance of power between different farming lobbies from state to state.

PM Margaret Thatcher was undoubtedly one of the most unyielding opponents to EU supranationalism and battled many times with the Community over issues such as the introduction of the Exchange Rate Mechanism (ERM), the EMU and the Social Chapter. She initially held out against participation of the ERM but in 1989 she agreed with the threat of cabinet resignations. In 1992 the ERM crashed, and the incident came to be known as Black Wednesday, such an experience would no doubt make Member States less confident in participating in some Community activities.

The Treaty of Amsterdam (ToA) emphasised institutional reform to facilitate further enlargement and address the issue of 'democratic deficit' in the EU, a more prominent role for national governments, greater movement of persons (schengen aquis). One of the major innovations introduced was a 'flexibility' clause enabling co-operation to be set up among certain Member States under certain conditions. The environment has been raised as a key issue in the ToA, and has been integrated into the implementation and of all Community policies and activities through an 'integration clause'31.

Member States must now recognise that there is an obligation to reconcile other Treaty obligations with environmental protection, the result of this could be over-regulation and place more financial burdens on poorer EU Members. The conditions to join the Community are now tougher than previous rounds of enlargement. A policy of conditionality (the Copenhagen criteria) required by the EU means that candidate countries must adapt their laws and institutions in very significant ways even before the date of accession is given.

Things like democratisation, crime, education, healthcare, etc, must be brought to acceptable standards. The enormous expansion and growth of policies has meant that Members are less likely to be able to comply with all of them. 32 A time period may be fixed for objectives to be achieved at a minimum level and if the Member fails to do this (or does this inadequately) within the specified time they may be penalised for it,33 so with the prospect of such regulations is it any wonder why Members may choose to opt-out.