The Treaty of Maastricht was followed, in 1999, by the Treaty of Amsterdam, which is mainly known for increasing EU powers in the areas of “external border control and visas, asylum and immigration policy, and judicial cooperation.”6 Again, these policy areas traditionally represent core aspects of national sovereignty, as the refugee crisis overwhelming Europe in 2015 makes painfully clear.
FROM THE COMMON CURRENCY TO THE CONSTITUTION
In the early years of the new century, the EU continued its inexorable evolution toward a higher level of integration. On January 1, 2002, monetary union became a day-to-day reality for everyday people. Euro coins and notes replaced national currencies in twelve EU member states. The eurozone now comprises nineteen out of twenty-eight EU member states. We will discuss this huge leap toward supranationality in greater detail in Chapters 9 and 17.
Then, on February 1, 2003, the Treaty of Nice came into effect. Its main purpose was to reform the EU institutions to prepare for the upcoming enlargement, in 2004, from fifteen to twenty-five member states. This involved measures such as adjusting the weighting of votes in the Council of Ministers to give the more populous member states a greater voice, and redistributing the votes among the much larger number of member states; reapportioning seats in the European Parliament to accommodate the new member states; extending qualified-majority voting (as opposed to requiring unanimity of all member states) to about thirty new policy realms, affecting areas such as immigration, refugee and asylum policy, the introduction of the euro, and trade in services, so that the enlarged EU could function more easily even without unanimity in many areas; strengthening and streamlining the “enhanced cooperation” option, to allow member states the possibility of choosing more often to move forward together on common initiatives even if some member states opted out.7
These measures, especially those regarding enhanced cooperation and qualified-majority voting, all paved the way for a much larger and more deeply integrated EU, with more power centralized in Brussels. Several other steps the Nice Treaty made toward greater European integration were (1) the establishment of a way for the EU Council to step in if it believes that a member state’s actions pose a danger of a serious violation of citizens’ “fundamental rights” and to “recommend” measures the member state should take to avoid that violation; (2) the establishment of a legal basis for the EU to regulate EU-level political parties, especially regarding their recognition as parties and their funding; and (3) and (4) measures to increase cooperation at the EU level on defense and criminal justice. All of these measures represent an attempt to strike a balance between increasing the pooling of national sovereignty at the EU level and maintaining cherished prerogatives of the member states. Balance or not, by wading into areas such as fundamental rights, political parties, defense and criminal justice, the Treaty of Nice clearly anticipates a diminishment of national sovereignty in key policy arenas.
In 2002–2003, roughly at the same time as the ratification process for the Treaty of Nice, a Convention on the Future of Europe, or European Convention, was called into being. After about a year and a half of debate and negotiation, the convention produced a draft of what was formally called the “Treaty Establishing a Constitution for Europe,” though it was generally known as the European Constitution. Meant to be reminiscent of the United States Constitution, but without establishing a United States of Europe, the draft was in reality a treaty and was officially so called, but the term “treaty” in the title was played down by EU elites. The concept of a “European Constitution” better reflected their aspiration: to establish in Europeans’ hearts and minds a sense of European unity and patriotic attachment to the EU, expressed in a constitution crafted – like the U.S. Constitution – by a group of enlightened leaders, on behalf of their people, to found a new political “city on a hill” in Europe.
Again, language was manipulated in order to serve the cause of supranational European governance, with the treaty being sold to the public as a constitution. But the tactic backfired. Introducing a “constitution” for Europe was too big a step, violating Monnet’s rule of incrementalism. Europeans already had their own national constitutions. They didn’t want an EU constitution. In national referenda in 2005, the French and the Dutch rejected the European Constitution.
“A CONSTITUTION THROUGH THE BACK DOOR”
After getting hammered by French and Dutch voters, EU leaders beat a tactical retreat. They fell back on the legacy of Monnet and the strategy of deception. They made cosmetic amendments to the European Constitution and renamed it the Reform Treaty initially, before settling on Treaty of Lisbon. According to the European Commission website, the Lisbon Treaty, which entered into force on December 1, 2009, “reforms the EU institutions and improves the EU decision-making process; strengthens the democratic dimension of the EU; reforms the internal policies of the EU; [and] strengthens the external policies of the EU.”8 No mention is made of the fact that the Lisbon Treaty is, for all intents and purposes, the EU constitution with new clothing.
Jens-Peter Bonde, a leading Euroskeptic, effectively brought this reality to light. A longtime member of the European Parliament from Denmark and a member of the European Convention, Bonde undertook an exhaustive comparison of the Lisbon Treaty and the failed European Constitution.9 He found that there was virtually no difference between the two, except that the Lisbon Treaty was packaged as a set of amendments to the existing EU treaties in order to obscure that fact. The Lisbon Treaty, he concluded, was “a constitution through the back door.”10 Bonde further characterized the European Constitution / Lisbon Treaty as a “Constitution without democracy,” explaining, “A constitution usually protects citizens from politicians. It sets limits to what those elected may decide on between elections. The EU Constitution and the Lisbon treaty are different in this respect. They protect bureaucrats and politicians from the normal democratic influence of voters.”11 Furthermore, the Lisbon Treaty represents a massive transfer of power from member states to the EU. Bonde’s analysis showed a “power shift from voters to Brussels in 113 points. There was and is not a single instance of power going the other way.”12
The Lisbon Treaty brought a myriad of structural changes to the EU. For example, the EU now has two “presidents.” In addition to the president of the European Commission, a post that has existed since 1958, there is now a president of the European Council, who presides over the summit meetings of the EU member states’ heads of government and of state. Lisbon created the post of high representative for foreign affairs and security policy, basically a de facto EU foreign minister, and an EU-level diplomatic corps, the European External Action Service (EEAS), under the leadership of the high representative. Lisbon also increased EU power in justice and policing.
Another important innovation of the Lisbon Treaty is that it conferred upon the EU a legal personality. This made the EU into a real actor in international affairs, completely distinct from the member states, and thus enabled the EU, among other things, to negotiate and be a party to international treaties. Significantly, Lisbon also incorporated the Charter of Fundamental Rights of the European Union, thereby making it legally binding. In that way, Lisbon has established a stronger legal basis – or at least a legal pretext – for the pursuit of a supranational human rights policy at EU level, a topic we will examine in Part Four of this book.
The symbolism of Lisbon is just as important as its transfer of considerable powers from the member states to the EU. Lisbon made the EU look more like a sovereign entity, endowing it with many of the characteristics of state sovereignty. An EU-level president of the European Council now “presides” over the EU national heads of government, at least symbolically.