7 May 1948, The Hague.
Winston Churchill is warmly welcomed at the Congress of Europe. The former British Prime Minister, and leader of the opposition at the time, chaired the inaugural session of the Congress. On 19 September 1946, he had called for European unity in his Zurich address.
From Paris to Lisbon, via Rome, Maastricht, Amsterdam and Nice
Until shortly after the end of the Second World War our concept of the state and our political life had developed almost entirely on the basis of national constitutions and laws. It was on this basis that the rules of conduct binding not only on citizens and parties in our democratic states but also on the state and its organs were created. It took the complete collapse of Europe and its political and economic decline to create the conditions for a new beginning and give a fresh impetus to the idea of a new European order.
In overall terms, moves towards unification in Europe since the Second World War have created a confusing mixture of numerous and complex organisations that are difficult to keep track of. For example, the OECD (Organisation for Economic Cooperation and Development), WEU (Western European Union), NATO (North Atlantic Treaty Organisation), the Council of Europe and the European Union coexist without any real links between them. The number of member countries in these various organisations ranges from 10 (WEU) to 47 (Council of Europe).
This variety of organisations only acquires a logical structure if we look at their specific aims. They can be divided into three main groups.
FIRST GROUP: THE EURO-ATLANTIC ORGANISATIONS
The Euro-Atlantic organisations came into being as a result of the alliance between the United States of America and Europe after the Second World War. It was no coincidence that the first European organisation of the postwar period, the OEEC (Organisation for European Economic Cooperation), founded in 1948, was created at the initiative of the United States. The US Secretary of State at the time, George Marshall, called on the countries of Europe in 1947 to join forces in rebuilding their economies and promised American help. This came in the form of the Marshall Plan, which provided the foundation for the rapid reconstruction of western Europe. At first, the main aim of the OEEC was to liberalise trade between countries. In 1960, when the USA and Canada became members, a further objective was added, namely to promote economic progress in the Third World through development aid. The OEEC then became the OECD.
In 1949, NATO was founded as a military alliance with the United States and Canada. In 1954, the Western European Union (WEU) was created to strengthen security policy cooperation between the countries of Europe. It brought together the countries that had concluded the Brussels Treaty (Belgium, France, Luxembourg, the Netherlands and the United Kingdom) with the addition of the Federal Republic of Germany and Italy. Greece, Spain and Portugal have also become members. The WEU marked the beginnings of a security and defence policy in Europe in 1954. However, its role has not developed further, since the majority of its powers have been transferred to other international institutions, notably NATO, the Council of Europe and the EU. The WEU has retained the responsibility for collective defence, a role which has yet to be transferred to the EU.
SECOND GROUP: COUNCIL OF EUROPE AND OSCE
The feature common to the second group of European organisations is that they are structured to enable as many countries as possible to participate. At the same time, there was an awareness that these organisations would not go beyond customary international cooperation.
These organisations include the Council of Europe, which was founded as a political institution on 5 May 1949. Its statute does not make any reference to moves towards a federation or union, nor does it provide for the transfer or merging of sovereign rights. Decisions on all important questions require unanimity, which means that every country has a power of veto; the same set-up is to be found in the United Nations (UN) Security Council. The Council of Europe is therefore designed only with international cooperation in mind. Numerous conventions have been concluded by the Council in the fields of economics, culture, social policy and law. The most important — and best-known — of these is the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or ECHR) of 4 November 1950. The convention not only enabled a minimum standard for the safeguarding of human rights to be laid down for the member countries; it also established a system of legal protection which enables the bodies established in Strasbourg under it (the European Commission on Human Rights and the European Court of Human Rights) to condemn violations of human rights in the member countries.
This group of organisations also includes the Organisation for Security and Cooperation in Europe (OSCE), founded in 1994 as the successor to the Conference on Security and Cooperation in Europe. The OSCE is bound by the principles and aims set out in the 1975 Helsinki Final Act and the 1990 Charter of Paris. Alongside measures to build up trust between the countries of Europe, these aims also include the creation of a ‘safety net’ to enable conflicts to be settled by peaceful means. As events of the recent past have shown, Europe still has a long way to go in this respect.
THIRD GROUP: EUROPEAN UNION
The third group of European organisations comprises the European Union. The feature that is completely new in the EU and distinguishes it from the usual type of international association of states is that the Member States have ceded some of their sovereign rights to the EU and have conferred on the Union powers to act independently. In exercising these powers, the EU is able to issue sovereign acts which have the same force as laws in individual states.
The foundation stone of the European Union was laid by the then French Foreign Minister Robert Schuman in his declaration of 9 May 1950, in which he put forward the plan he had worked out with Jean Monnet to bring Europe’s coal and steel industries together to form a European Coal and Steel Community. This would, he declared, constitute a historic initiative for an ‘organised and vital Europe’, which was ‘indispensable for civilisation’ and without which the ‘peace of the world could not be maintained’. The ‘Schuman Plan’ finally became a reality with the conclusion of the founding Treaty of the European Coal and Steel Community (ECSC) by the six founding States (Belgium, Germany, France, Italy, Luxembourg and the Netherlands) on 18 April 1951 in Paris (Treaty of Paris) and its entry into force on 23 July 1952. This Community was established for a period of 50 years, and was ‘integrated’ into the European Community when its founding Treaty expired on 23 July 2002. A further development came some years later with the Treaties of Rome of 25 March 1957, which created the European Economic Community (EEC) and the European Atomic Energy Community (Euratom); these began their work when the Treaties entered into force on 1 January 1958.
The creation of the European Union by means of the Treaty of Maastricht marked a further step along the path to the political unification of Europe. Although the Treaty was signed in Maastricht on 7 February 1992, a number of obstacles in the ratification process (approval by the people of Denmark only after a second referendum; legal action in Germany to have Parliament’s approval of the Treaty declared unconstitutional) meant that it did not enter into force until 1 November 1993. The Treaty referred to itself as ‘a new stage in the process of creating an ever closer union among the peoples of Europe’. It contained the instrument establishing the European Union, although it did not bring this process to completion. It was a first step on the path leading ultimately to a European constitutional system.
Further development came in the form of the Treaties of Amsterdam and Nice, which entered into force on 1 May 1999 and 1 February 2003. The aim of these reforms was to preserve the EU’s capacity for effective action in a Union enlarged from 15 to 27 or more members. The two Treaties therefore focused on institutional reforms and, compared with previous reforms, the political will to deepen European integration in Nice was relatively weak.
The subsequent criticism from several quarters resulted in the start of a debate on the future of the EU and its institutional set-up. As a result, on 5 December 2001 in Laeken (Belgium), the Heads of State or Government adopted a Declaration on the Future of the European Union, in which the EU undertook to become more democratic, transparent and effective and to open the road to a constitution. The first step to achieving this goal was taken by setting up a European convention, chaired by the former President of France, Valéry Giscard d’Estaing, with the remit of drafting a European constitution. On 18 July 2003 the Chairman, on behalf of the convention, officially submitted the draft of the Treaty drawn up by the convention to the President of the European Council. This draft was adopted, with certain amendments, by the Heads of State or Government on 17 and 18 July in Brussels after the accession of the 10 new Member States on 1 May 2004 and the European Parliament elections in mid-June 2004.
The constitution was intended to turn the European Union and the European Community as we knew them into a new, single European Union based on a single Constitutional Treaty. Only the European Atomic Energy Community would continue to exist as a separate Community — although it would continue to be closely associated with the European Union.
However, this attempt at a constitution failed in the ratification process. After the initial votes were positive in 13 of the 25 Member States, the Treaty was rejected in referendums in France (54.68 % against, from a turnout of 69.34 %) and the Netherlands (61.7 % against, from a turnout of 63 %).
Following a period of reflection of almost two years, a new package of reforms was launched in the first half of 2007. This reform package represented a move away from the idea of a European constitution under which all existing Treaties would be revoked and replaced by a single text called the ‘Treaty establishing a Constitution for Europe’. Instead, a Reform Treaty was drawn up, which, like the Treaties of Maastricht, Amsterdam and Nice before it, made fundamental changes to the existing EU Treaties in order to strengthen the EU’s capacity to act within and outside the Union, increase its democratic legitimacy and enhance the efficiency of EU action overall. In line with tradition, this Reform Treaty was called the Treaty of Lisbon.
The Treaty was drafted unusually quickly, chiefly due to the fact that the Heads of State or Government themselves set out in detail in the conclusions of the meeting of the European Council of 21 and 22 June 2007 in Brussels how and to what extent the changes negotiated at the Intergovernmental Conference of 2004 were to be incorporated into the existing Treaties. Their approach was unusual in that they did not limit themselves to general directions to be implemented by an Intergovernmental Conference, but themselves drew up the structure and content of the changes to be made, and indeed often set out the exact wording of a provision. The main points of contention were the delimitation of competences between the Union and the Member States, the future of the common foreign and security policy, the new role of the national parliaments in the integration process, the incorporation of the Charter of Fundamental Rights into Union law and possible progress in the area of police and judicial cooperation in criminal matters.
As a result, the Intergovernmental Conference convened in 2007 had little room for manoeuvre and was only empowered to implement the required changes technically. The work of the Intergovernmental Conference was completed by the 18 and 19 October 2007, and obtained the political approval of the European Council, which was meeting informally in Lisbon at the same time. Finally, the Treaty was formally signed by the Heads of State or Government of the 27 Member States of the EU on 13 December 2007 in Lisbon.
However, the ratification process for this Treaty proved extremely difficult. Although the Lisbon Treaty, unlike the Treaty establishing a Constitution for Europe, was successfully ratified in France and the Netherlands, it initially fell at the hurdle of a first referendum in Ireland on 12 June 2008 (53.4 % against, in a turnout of 53.1 %). Only after a number of legal assurances on the (limited) scope of the new Treaty were Irish citizens called to vote in a second referendum on the Lisbon Treaty in October 2009. This time the Treaty received the broad support of the Irish population (67.1 % for, in a turnout of 59 %). The success of the referendum in Ireland also opened the way for ratification of the Lisbon Treaty in Poland and the Czech Republic. In Poland, President Kaczyński had made signature of the instrument of ratification dependent on a favourable outcome in the Irish referendum. The Czech President, Václav Klaus, also initially wanted to wait for the Irish referendum, but then made his signature of the instrument of ratification dependent on a guarantee that the ‘Beneš decrees’ of 1945, which disallowed claims to land in areas of the Czech Republic that were formerly German, would remain unaffected by the Lisbon Treaty, and in particular the Charter of Fundamental Rights incorporated into the EU Treaty. Once a solution had been found to this demand, the Czech President signed the instrument of ratification on 3 November 2009. Thus, the ratification process was completed in the last of the 27 Member States, and the Treaty of Lisbon could enter into force on 1 December 2009.
The Treaty of Lisbon merges the European Union and the European Community into a single European Union. The word ‘Community’ is replaced throughout by the word ‘Union’. The Union replaces and succeeds the European Community. However, Union law is still shaped by the following three Treaties.
Treaty on European Union
The Treaty on European Union (EU Treaty — ‘TEU’) has been completely restructured into the following six titles: Common provisions (I), Provisions on democratic principles (II), Provisions on institutions (III), Provisions on enhanced cooperation (IV), General provisions on the Union’s external action and specific provisions on the common foreign and security policy (V) and Final provisions (VI).
Treaty on the Functioning of the European Union
The Treaty on the Functioning of the European Union (‘TFEU’) has been developed from the Treaty establishing the European Community. It has more or less the same structure as the EC Treaty. The main changes concern the external action of the EU and the introduction of new chapters, in particular on energy policy, police and judicial cooperation in criminal matters, space, sport and tourism.
Treaty establishing the European Atomic Energy Community
The Treaty establishing the European Atomic Energy Community (EAEC Treaty — ‘Euratom Treaty’) has been amended at different stages. In each case, the specific amendments have been made in protocols annexed to the Treaty of Lisbon.
The TEU and the TFEU have the same legal standing. This explicit legal clarification is necessary, since the new title of the former EC Treaty (‘Treaty on the Functioning of the EU’) and the levels of regulation in both Treaties give the impression that the TEU is a sort of constitution or basic treaty, whilst the TFEU is intended as an implementing treaty. However, the TEU and the TFEU are not constitutional in nature. The terms used in the Treaties overall reflect this change of approach from the former draft constitution. The expression ‘constitution’ is no longer used; the ‘EU foreign minister’ is referred to as the ‘High Representative of the Union for Foreign Affairs and Security Policy’; and the definitions of ‘law’ and ‘framework law’ have been abandoned. The amended Treaties also contain no articles referring to the symbols of the EU, such as the flag, anthem or motto. The primacy of EU law is not explicitly laid down in a treaty, but is derived, as before, from the case-law of the Court of Justice of the European Union, and this case-law is referred to in an explanatory declaration.
The Treaty of Lisbon also abandons the EU’s ‘three pillars’. The first pillar, consisting essentially of the single market and the EC policies, is merged with the second pillar, consisting of the common foreign and security policy, and the third pillar, covering police and judicial cooperation in criminal matters. However, the special procedures relating to the common foreign and security policy, including European defence, remain in force; the Intergovernmental Conference declarations attached to the Treaty underline the special nature of this policy area and the particular responsibilities of the Member States in this respect.
The EU currently has 27 Member States. These comprise first of all the six founder members of the EEC, namely Belgium, Germany (including the territory of the former GDR following the unification of the two Germanies on 3 October 1990), France, Italy, Luxembourg and the Netherlands. On 1 January 1973, Denmark (now excluding Greenland, which in a referendum in February 1982 voted by a narrow majority not to remain in the EC), Ireland and the United Kingdom joined the Community; Norway’s planned accession was rejected in a referendum in October 1972 (with 53.5 % against EC membership). The ‘enlargement to the south’ was begun with the accession of Greece on 1 January 1981 and completed on 1 January 1986 with the accession of Spain and Portugal. The next enlargement took place on 1 January 1995 when Austria, Finland and Sweden joined the EU. In Norway, a referendum led to a repeat of the outcome 22 years before, with a small majority (52.4 %) against Norwegian membership of the EU. On 1 May 2004 the Baltic States of Estonia, Latvia and Lithuania, the east and central European States of the Czech Republic, Hungary, Poland, Slovenia and Slovakia and the two Mediterranean islands of Cyprus and Malta joined the EU. Only a little over two years later, the enlargement to the east was completed for the time being with the accession of Bulgaria and Romania on 1 January 2007. This extended the number of Member States from 15 to 27 and increased the EU population by around 90 million, bringing it to 474 million. This historic enlargement of the EU is the centrepiece of a long process leading to the reunification of a Europe that had been divided for over half a century by the Iron Curtain and the cold war. Above all, it reflects the desire to bring peace, stability and economic prosperity to a unified European continent.
Further accession negotiations are under way, notably with Turkey, which submitted its application for membership on 14 April 1987. However, relations between the EU and Turkey go back further than this. As long ago as 1963, Turkey and the EEC entered into an association agreement which referred to the prospect of membership. In 1995, a customs union was formed and, in Helsinki in December 1999, the European Council decided to grant Turkey officially the status of an accession candidate. This was a reflection of the belief that the country had the basic features of a democratic system, although it still displayed serious shortcomings in terms of human rights and the protection of minorities. In December 2004, on the basis of the Commission’s recommendation, the European Council finally gave the go-ahead for the opening of accession negotiations with Turkey; these negotiations have been ongoing since October 2005. The ultimate aim of these negotiations is accession, but there is no guarantee that this aim will be achieved. There is also agreement within the EU that accession is not possible before 2014. Any such accession must be thoroughly prepared to allow for smooth integration and to avoid endangering the achievements of over 50 years of European integration. Other candidates for accession are Croatia, where the path to the start of accession negotiations was cleared in October 2005, and the former Yugoslav Republic of Macedonia, which was given official candidate country status in December 2005 without an actual date for the start of negotiations being set. Iceland submitted an application for membership on 17 July 2009. On 24 February 2010 the European Commission recommended that the Council open accession negotiations with Iceland.
The EU is now also working resolutely for new enlargements in the western Balkan region. It has decided to apply the same methodology to the western Balkan countries as it used previously for the new Member States. An extended stabilisation and association process therefore remains the overall framework for the progression of the countries of the western Balkans, all the way to their accession. A first important step in this direction is the ‘European partnerships’ established with Albania, Bosnia and Herzegovina and Serbia and Montenegro, including Kosovo 1. The role of the European partnerships, updated as necessary, is to assist the western Balkan countries in preparing for membership within a coherent framework and in developing action plans with timetables of reforms and details in terms of the means by which they intend to address the requirements for further integration into the EU.
Provision has also been made for withdrawal from the EU. A withdrawal clause has been incorporated into the EU Treaty, allowing a Member State to leave. There are no conditions for such a withdrawal from the Union; all that is required is an agreement between the EU and the Member State concerned on the arrangements for its withdrawal. If such agreement cannot be reached, the withdrawal becomes effective without any agreement two years after the notification of the intention to withdraw. However, there is no provision for expulsion of a Member State from the EU for serious and persistent breaches of the Treaties.