Introduction

The Lisbon Treaty came into force on December 1, 2009. The last member state to endorse it, Ireland, which first rejected it in a popular referendum held on June 12, 2008, finally approved the new Treaty in a second popular referendum held on October 2, 2009. The Lisbon Treaty consists of a series of amendments to the Treaty on European Union (TEU, Maastricht 1992) and the Treaty Establishing the European Community (TEC, Rome 1957), the latter being renamed the Treaty on the Functioning of the European Union (TFEU) in the process. The Charter of Fundamental Rights, elaborated for the Nice Treaty of 2001, has been given legal value as a third treaty included in the Lisbon Treaty. The two consolidated Treaties and the Charter form the legal basis of the Union. The Lisbon Treaty has tried to impose order on the institutional complexity acquired by the EU, giving a legal personality to the latter when acting in international affairs and abolishing the three pillar structure (Devuyst 2012). Notwithstanding the formal suppression of the pillar structure, the Lisbon Treaty did, however, recognize the existence of two different decision-making regimes (one supranational and the other intergovernmental).

This chapter is organized as follows. First, it will discuss the differentiation between the two decision-making regimes, here conceptualized as the dual constitution of the Lisbon Treaty. After analysis of the supranational constitution, it puts forward a detailed analysis of the intergovernmental constitution, regarding both foreign policy and economic policy decision-making regimes. Here I use the concept of “constitution” in a “material” sense (see Chapter 3) as a decision-making regime supported or justified by a distinct principle of power distribution. If the supranational constitution sustains and justifies a system of government characterized by the sharing of decision-making power among four institutions (the dual executive constituted by the European Council – recognized as a formal institution of the Union for the first time – and the Commission and the bicameral legislative branch constituted by the EP and the Council), the intergovernmental constitution instead sustains and justifies a system of governance, characterized by the pooling of decision-making power in two institutions, the European Council and the Council, representing the national governments of the Union's member states.

Introduction

The intergovernmental perspective on the EU emerged during the negotiations that led to the 1992 Maastricht Treaty, to then acquire the form of a specific constitutional model or decision-making regime. The intergovernmental constitution was fully institutionalized by the 2009 Lisbon Treaty. Since financial policy has been assigned, by the latter, to the control of the intergovernmental constitution, the euro crisis has been a formidable test of its capability (Dinan 2011). Indeed, once the EU had to face the failure of the CT in the French and Dutch popular referenda of 2005, the intergovernmental perspective emerged as the predominant view of integration. As The Economist's Charlemagne (2012) wrote, after “the French and Dutch voters killed the proposed EU constitution … intergovernmentalism [became] the new fashion.” The view expressed by the then French President Sarkozy in his Toulon speech on December 1, 2011, that “the integration of Europe” will have to go the intergovernmental way if Europe wants “to make strategic political choices,” was and continues to be shared by several national governments and groups of citizens.

This intergovernmental perspective is not skeptical of the European integration process, as is the view of the supporters of the economic community. Post-Maastricht intergovernmentalism has recognized that integration should proceed without, however, going in the supranational direction. On the contrary, integration should consist in pooling national sovereignties within intergovernmental institutions. The decision-making power should not be in the hands of each member state, but in those of the institutions that coordinate the action of the member state governments (the European Council and the Council).

Introduction

If it is true that the euro crisis has deepened the divisions within the EU, it is also true that those divisions have constituted a permanent feature of its process of institutionalization. With the progressive deepening of European integration (i.e. the proliferation of public policies decided in Brussels) and its periodical widening, the institutionalization of the EU has grown increasingly more political and less economic (Maduro 2003; Walker 2007), and thus more contentious (Glencross 2014a). The euro crisis has ended up bringing in through the back door the very issue that was not allowed to enter through the front door at the foundation of the EU (after the rejection by the French Assemblée Nationale in 1954 of the EDC project), namely the issue of what the Union should be. In the 1990s, with the end of the Cold War and the prospect of the political reunification of the continent, the dispute on the constitutional identity of the EU came to the fore. The necessity to give a constitutional identity to the EU accompanied the constitutional decade of the 2000s. That necessity was then frozen by the French and Dutch referenda on the CT in 2005. It seemed that the 2009 Lisbon Treaty had finally settled the problem, institutionalizing a truce between the alternative views of the Union. But events have not followed expectations. The euro crisis entered like a tornado against the apparent lethargy that led to the signing of the Treaty, reopening and deepening the old constitutional divisions between member states and bringing to the surface tensions among EU institutions (such as the European Council, on one side, and the EP, on the other). With approval of new intergovernmental treaties, the issue of what the EU is and should be has re-emerged.

As with all established political systems, the EU is also structured around cleavages.

Introduction

Having identified the model of democracy of unions of states, it is then possible to investigate whether that model fits the democratic functioning of the EU. Certainly, it might be questioned whether the EU can even be considered a democracy (Majone 2009). However, as shown in Part I, there are good arguments for considering the EU as a democracy. A polity may be considered democratic (Dahl 1989: Part 3 and Part 4) when it is regulated by a higher legal order, it protects the fundamental rights of its citizens and the decision-making system meets basic criteria of representation and accountability (Mény and Surel 2002). The EU is a constitutionalized polity, although contrasted and contested, based on treaties interpreted as a quasi-constitution (or as a material constitution) and on a Charter of Fundamental Rights finally recognized by the Lisbon Treaty. Moreover, those who take decisions in the supranational EU are elected by citizens either in national elections (governmental leaders of the European Council and ministers of the Council) or in European elections (MEPs), or (as is the case for the president and commissioners of the Commission) nominated through an interlocking decision-making process started by politicians elected in national elections (leaders of the European Council) and concluded by politicians elected in European elections (MEPs). Finally, the supranational EU satisfies both inter-institutional and electoral accountability (Morlino 2012). EU decision-makers are compelled to act within a complex system of inter-institutional controls and, at the same time, all of them are subject to the control of national constitutional courts and the ECJ, thus satisfying inter-institutional accountability. At the same time, EU decision-makers have to face the periodical evaluation of the voters, at both national and European level, thus satisfying electoral accountability as well. Of course, the existence of a growing intergovernmental side of the EU, with its confusion of powers, has made the democratic functioning of the EU much more problematic.

Defining the EU as a democratic polity does not mean shielding it from criticism. However, criticisms, albeit of a different nature, might also be addressed to each and every national democracy.

Introduction

The process of European integration has been accompanied by alternative competing visions regarding its finality. Those competing visions were not coherently articulated during the first decades of the process. Indeed, they were often kept implicit. Nevertheless, different perspectives on the EU have accompanied the integration process. Although the EU started as an international organization in the first years of its life, since the rulings of the ECJ in the 1960s and the decisions taken at the IGCs in the 1970s and 1980s, it has silently acquired the features of a supranational polity presiding over an increasingly large common and then single continental market. The different waves of enlargement in the 1970s and 1980s increased the pluralism of perspectives on the finality of the process of integration, with the formation of an economic community vision of the integration process competing with the political union vision that was still in the majority. The end of the Cold War and the implosion of the Soviet Union between 1989 and 1991 led the EU to face dramatic new challenges. Two in particular became crucial: first, the EU had to assume an international role, developing an autonomous foreign and security policy, given that it could no longer justify the traditional protection from the USA once the Soviet Union had disappeared; second, the EU had to find a supranational counterweight to the unification of Germany made inevitable by the crumbling of the Berlin Wall.

The 1992 Maastricht Treaty was the answer to those challenges. For this reason it represents a qualitative leap in the process of integration. The preparation and then approval of the Treaty made clear that the EU had to Europeanize new policies that were traditionally at the core of national sovereignty, such as (inter alia) foreign, security, economic and monetary policies.

Introduction

Having recognized the unsatisfactory performance of intergovernmental union, it is now time to discuss the alternative perspective advanced for promoting a political union. The perspective of parliamentary union continues to be the mainstream alternative to intergovernmental union, advanced by very influential scholarship with roots in the neo-functional school of European integration that promoted the “Community method” of integration. And, of course, it has been the most popular perspective among officials working in the supranational institutions of the EU in Brussels. Its salience has increased with the deepening of the euro crisis and the difficulty experienced by the intergovernmental institutions in taming it. It is based on the assumption that, without becoming a parliamentary federation with the Commission acting as a federal government elected and controlled by the EP or its majority, the EU will never truly resolve the euro crisis. One can even argue (as the Spinelli Group and Bertelsmann Stiftung (2013) did) that the euro crisis has been the dramatic but welcome opportunity for relaunching the federal project frozen after the failure of the CT in 2005.

This perspective consists in “the ambition to establish … a system of government at the European level with a strong priority-setting and policy-planning input for the EP, a system that in a way would resemble mutatis mutandis parliamentary democracy in a nation-state” (Lehmann and Schunz 2005: 10). At its core there is the strengthening of the political relations between the EP and the Commission. Although there are several definitions of parliamentarism, its crucial feature resides in the fact that “the head of the government … and his or her cabinet are dependent on the confidence of the legislature and can be dismissed from office by a legislative vote of no confidence or censure” (Lijphart 1992: 2).

Introduction

Notwithstanding the extraordinary institutional development of the EU and the formidable complexity of its decision-making systems constitutionalized by the Lisbon Treaty and made even more complex by the need to deal with the euro crisis, the claim that the EU is and should be an economic community similar to other regional economic organizations has continued to be heard in the European debate. In his speech on Europe, given on January 23, 2013, the British Prime Minister David Cameron said that “at the core of the European Union must be, as it is now, the single market,” adding that “the EU must be able to act with the speed and flexibility of a network.” Cameron reclaimed the concept of an EU as the organization of an economic community that was subsumed into a larger Union with the 1992 Maastricht Treaty. Indeed, the Northern core of the ex-EFTA countries has persistently interpreted the EU as an economic confederation, a forum where national governments meet to find solutions to common economic problems (Berrington and Hague 2001). As Cameron stressed on that occasion, if some member states “are contemplating much closer economic and political integration … many others, including Britain, would never embrace that goal.”

Politically, the economic community perspective has been interpreted by their supporters as the one that both allows for cooperation between states and preserves the sovereignty (or crucial parts of it) of each of them. In this sense, this has been and continues to be the perspective of the sovereignist coalition. Although the economic community perspective has never been coherently elaborated, it might be assumed that it is based on cooperation rather than coordination between states regarding the promotion of common policies, a cooperation that is much looser than the one envisioned in the intergovernmental constitution of the Lisbon Treaty.