The start of the process of constitutionalising the European Union
1. Introduction/Summary
On 14 February 1984, at the urging of Altiero Spinelli, the European Parliament approved a draft Treaty as the start of the process of constitutionalising the European Union. This initiative led first to the revision of the Treaties establishing the European Community (the Single Act, the Treaties of Maastricht, Amsterdam, Nice) and later to the Constitutional Treaty of 29 October 2004.
Altiero Spinelli made his constitutional attempt (i.e. to provide the European Community with a kind of constitutional text) at a time when the European Community was embroiled in negotiations about the amount of Britain's contribution to the European budget, reforming the common agricultural policy and increasing the very resources of the Union itself (not to mention negotiations on Spanish and Portuguese membership). As we can see, they were the same problems that gripped the Union in 2005 during the difficult discussions on the financial perspectives for the years 2007-2013.
The European Parliament was frustrated by the fact that, despite being elected by direct electoral suffrage, it did not have real powers of political influence in the European decision-making process (with the sole and essentially negative exceptions of the power to reject the budget adopted by the Council and the power to censor the Commission, but without being able to influence its investiture). Departing from his purely advisory role, Altiero Spinelli decided to prompt the European Parliament to become the "main weapon" of the constituent process within the Community and to revive the dynamics that were at least supposed to result in the radical reform of the European institutions as conceived by the 1957 Treaties of Rome, if not in the immediate adoption of a European "Constitution". In other words, he decided to take the initiative to lend new impetus to the process of European integration through the drawing up of a "new Treaty" rather than a simple change of detail in the existing Treaties.
2. The Spinelli Project
Re-reading the draft voted on by the European Parliament in February 1984 under the decisive impulse of Altiero Spinelli allows us to rediscover its extraordinary relevance and, at the same time, its precursory influence on the successive amendments to the Treaties of Rome. The relevance of the Spinelli Project lies at once in the method of drafting the Treaty and in the content of many of its provisions.
In the early 1980s, not unlike the situation today, the process of European integration found itself stuck in discussions about Britain's financial contribution, agricultural policy reform and increasing its own resources. Moreover, the Community was starting its third expansion to embrace Spain and Portugal without making provision meanwhile to reinforce its institutional mechanisms and powers. On the other hand, the European Parliament had been elected by direct universal suffrage in 1979 even though its essentially advisory powers remained unaltered. The exception of the power to reject the budget had proved to be a blunt weapon since the Council had been able to adopt a new budget similar to the one rejected by Parliament. The European Commission's power of censorship would also prove to be equally blunt since the Member States would have been able to appoint a Board of Commissioners not necessarily as welcoming to the European Parliament as the former (given that, unlike today, the Parliament did not have the power to approve the nomination of the new Commission). Therefore, the European Parliament was in danger of becoming, as was revealed, "an Assembly invested with an increased moral and political responsibility, but lacking in competences enabling it to exercise them". Like a good strategist, Altiero Spinelli made himself the commentator of this unsatisfactory situation and in a speech to the European Parliament in 1980 he launched a political initiative to give the European Community new powers and its institutions the means of exercising them. It was in that very speech on 25 June 1980, when the budget adopted by the Council was rejected, that Altiero Spinelli urged the European Parliament to take charge of the future destiny of the European Community and to launch the initiative of undertaking a "global reform" of the Rome Treaties.
In the interest of brevity, I shall limit myself to going over the fundamental steps of Altiero Spinelli's initiative:
a) creation of the "Crocodile Club" as a transversal group of innovative European Parliamentarians (reminiscent of the watershed between innovators and conservatives already present in the Ventotene Manifesto);
b) creation of an "Ad Hoc Commission" within the European Parliament in charge of drawing up the draft of the Treaty;
c) bringing pressure to bear on such prominent political personalities as Enrico Berlinguer, Willy Brandt, Leo Tindemans and finally, after the vote of the European Parliament, François Mitterrand, who Spinelli felt was the political personality most likely to support the Treaty both as the President of France and because of his personal leanings. Spinelli's strategy came to fruition when Mitterrand delivered his speech on 24 May 1984 in Strasbourg: "On behalf of France, I declare it ready to examine your project, whose spirit suits it".
Re-reading it today, Mitterrand's declaration can be interpreted in the light of other factors, as behind the statement by the President there was also a French interest in supporting the Spinelli Project, as was revealed by J.M. Palayret, who consulted the French diplomatic archives of the time. This interest lays in using a more ambitious European Union project to counterbalance English minimalism and keep open the option of a two-speed Europe (or one of variable-geometry), as Article 82 of the Spinelli Project suggested (once there was a majority of States representing 2/3 of the population, it provided for governments to decide, by common accord, the date on which the Treaty entered into force and the relations with States that had not ratified it). As we can see, this clause is more ambitious than declaration No 30 attached to the Constitutional Treaty of 29/10/2004, even though it is driven by the same desire to "sidestep" the unanimity rule.
3. The essential elements of the Spinelli Project
Re-reading the text of the Treaty of 14 February 1984 shows that most of its innovative provisions were included in successive Treaties or in the text of the Constitutional Treaty of 29 October 2004. Let's go over them briefly:
3.1 The method used by Spinelli
Altiero Spinelli was the first to argue that a Constitutional Treaty could not be drafted by an intergovernmental conference according to the traditional diplomatic method. Governments made this theory their own when, after the Treaty of Nice, they entrusted a European Convention with the task of preparing a new draft Treaty. Furthermore, in the Spinelli Project there was the germ of participation by national parliaments and civil society, such as emerged later in the European Convention and its methods of work.
3.2 The general structure of the Treaty
The Spinelli Project takes shape as a new institutional Treaty of the European Union and not as a mere revision of existing Treaties (unlike the Single Act, the Treaties of Maastricht, Amsterdam and Nice, but like the Constitutional Treaty of 29/10/2004). Therefore, rather than merely amending existing treaties, Altiero Spinelli really started the "constitutional" process of the Union.
3.3 Surmounting the various forms of political cooperation/integration
Article 1 of the Spinelli Project provides for the creation of a European Union that goes beyond the three European communities existing in 1984, the European monetary system and political cooperation. It is thus an approach that is equivalent to suppressing the three pillars provided for by the Constitutional Treaty of 2004 (which will be maintained by the new Treaty that will come out of the current Intergovernmental Conference).
3.4 European citizenship
Article 3 of the Spinelli Project introduces the concept of Union citizenship in parallel with national citizenship, the two being closely connected. This concept was revived by the Maastricht Treaty on the European Union and maintained in successive Treaties.
3.5 Fundamental rights
Article 4 introduces the idea of the fundamental rights that derive from the common principles of the National Constitutions, as well as from the European Convention for the Protection of Human Rights and Fundamental Freedoms. This article refers not only to the classic rights of the ECHR, but also to the new economic and social rights guaranteed by the National Constitutions (as would be done later by the Charter of Fundamental Rights promulgated in Nice in 2000 and integrated into the Constitutional Treaty of 2004).
3.6 Sanctions against Member States
To guarantee that fundamental rights are respected, Article 4(4) introduces the principle of penalties against States that are in breach of the democratic principles or the fundamental rights themselves. This provision anticipates the articles later introduced in the Amsterdam Treaty following the penalties bilaterally applied against Austria by certain Member States.
3.7 The institutionalisation of the European Council
Article 8 of the Spinelli Project introduces the European Council as one of the Institutions of the Union for the first time (whereas the Treaties of Rome make no mention of it and successive Treaties entrust the European Council with a few functions, but without making it an Institution of the Union). It would take the Constitutional Treaty of 29/10/2004 to "institutionalise" the European Council. In this area, too, the Spinelli Project proved to be the precursor of future constitutional developments.
3.8 The methods of operation of the Union
Article 10 of the Spinelli Project provides for two methods of operation of the Union. On the one hand, there is common action in accordance with the classic Community method (Commission proposal, majority vote of the Council, co-decision of the European Parliament); on the other hand, cooperation between the Member States in accordance with the intergovernmental method. The innovative element of the Spinelli Project is that the Union can move from intergovernmental action to the Community method by decision of the European Council (see Article 11). This provision anticipates the so-called "bridging" clauses introduced in successive Treaties to permit the passage from one decision-making procedure to another more in keeping with the Community method.
3.9 The principle of subsidiarity
Article 12 of the Spinelli Project introduces the idea for the first time that, in the area of concurrent powers, Union action is necessary if it proves to be more effective than the action of the Member States, particularly when the dimensions of the action of the Union or its effects extend beyond national frontiers. It is the first clear definition of the so-called principle of subsidiarity that would later be introduced into European law by the Maastricht Treaty.
3.10 Legislative co-decision between the Council and the European Parliament
The Spinelli Project introduces the concept of European law (taken up again by the Constitutional Treaty of 29/10/2004) voted on by the two branches of the legislative body (the European Parliament and the Council). European law is adopted by a procedure of co-decision between the European Parliament and the Council, as later provided for by the Maastricht Treaty. The Spinelli Project also makes provision for a Concertation Committee between Parliament and Council, with the participation of the Commission, as introduced successively by the Maastricht Treaty (based on the German model of the Conciliation Commission between the Bundestag and the Bundesrat).
3.11 The investiture of the Commission
The Spinelli Project provides for the Commission to start functioning after receiving a vote of investiture by the European Parliament. This provision was also included and perfected in successive Treaties.
3.12 The Council of the Union
Article 20 provides that the Council of the Union should consist of Ministers who are specifically and permanently responsible for European issues. This provision is a forerunner to the legislative Council provided for in the draft Treaty of the European Convention, although this was not resurrected in the Constitutional Treaty of 29/10/2004.
3.13 The Luxembourg Compromise on majority voting
An innovative clause of the Spinelli Project that was not included in successive Treaties
is Article 23(3) provided for the maintenance of the "Luxembourg Compromise" to prevent majority voting for a transitory period of ten years (should a vital national interest be recognised as such by the Commission). Nevertheless, traces of this provision, which confirms Spinelli's political realism, can be found in the so-called "bridging" clauses, which provide for the passage from unanimity to qualified majority after a certain number of years (see Article 67 of the Treaty on European Union). Even the transitory revival of the so-called Ioannina mechanism in the new Treaty that will come from the IGC is inspired by the philosophy of the Spinelli solution.
3.14 The designation of Commissioners by the President
This provision of the Spinelli Project (Article 25) was not taken up again in successive Treaties. Nevertheless, it is an idea that had already been formulated by Valery Giscard d'Estaing during the European Convention and proposed again by Sarkozy in his speech in September 2006 in order to appoint a Commission freed from nationality and not subject to the regular rotation of the Member States. In this case, too, this is a proposal that was ahead of its time.
3.15 The primacy of European law
Article 42 of the Spinelli Project sanctions the primacy of European law over that of the Member States. This provision, which results from the decisions of the Court of Justice, was taken up again in Article 6 of the Constitutional Treaty of 29/10/2004.
4. Elements of the project which have not been acknowledged so far
Other innovative provisions of the Spinelli Project were not acknowledged in successive Treaties or in the Constitutional Treaty of 2004. For example:
4.1 The system of financial equalisation
Article 73 of the Spinelli Project made provision for a system of financial equalisation to alleviate excessive economic imbalances between the regions of the Union. Inspired by the German federal system as a way of attenuating differences between the Länder, this provision was not acknowledged in successive amendments of the Treaties.
4.2 The entry into force of the Treaties
Article 82 of the Spinelli Project provided for the possibility that the Treaty should enter into force even in the absence of ratification by all the Member States. A majority of States representing two thirds of the population could decide on its entry into force and on relations with States that had not ratified it. This clause set out to modify the unanimity ruling imposed today by Article 48 of the Treaties. Even though not acknowledged in successive Treaties, it triggered other solutions put forward to sidestep the need for unanimous agreement (see, for example, the solution proposed in the "Penelope" Project drafted by a group of European officials directed by F. Lamoureux at the request of President Prodi).
4.3 Revision of the Treaties
Article 84 provided for a procedure to revise the Treaties through an agreement between the European Parliament and the Council in accordance with the procedure applicable to organic laws. This provision aimed to relieve Member States of the power to revise the Treaty and to suppress the need for unanimity. This procedure has recently been put forward again by MEP Andrew Duff for the new Constitutional Treaty.
4.4 The system of revenues
Article 71 of the Spinelli Project foresaw the possibility of creating new revenues for the Union without needing to amend the Treaty (an organic law being sufficient). Moreover, the Commission would be authorised by law to issue loans. This proposal, highly innovative at the time, remains so even today.
5. Conclusions
A rough estimate shows that about two thirds of the innovative provisions of the Spinelli Treaty have been acknowledged in successive Treaties. As far as the remaining third is concerned, about half were incorporated into the Constitutional Treaty or are being debated today as provisions to be included in the new Treaty expected to enter into force in 2009. This re-reading of the Treaty of 1984 not only proves the vital importance of the Spinelli Project, it also underlines its farsightedness. Altiero Spinelli began the process of constitutionalising the Treaties and proposed innovative solutions that have, for the most part, been acknowledged or recognised as valid solutions for the new Constitutional Treaty. Even though initially Spinelli lost the immediate battle of the Single Act of 1986, we can say that today he is winning the fight to give the European Union a Treaty that is essentially, if not formally, constitutional and that will contain most of the solutions imagined by him and voted on by the European Parliament in February 1984.
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