The Maastricht Treaty: Second Thoughts after 20 Years

Thomas Christiansen, Simon Duke

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781134907083
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The Maastricht Treaty, signed in 1992 and ratified in the following year, is widely seen as a landmark in the evolution of the European Union. It introduced into the treaty framework revolutionary new elements such as the co-decision procedure between the Council and the European Parliament, cooperation in the area of Justice and Home Affairs, the Common Foreign and Security Policy and the "euro" as a single currency for the majority of the then member states. It also introduced the concept of European citizenship into the treaty, reflecting the rising expectations of both citizens and decision-makers in the European project, and upgraded the role of the European Council at the summit of the EU's institutional structure.

Twenty years later, each of these innovations remain of central importance for the process of European integration, while current developments provide a valuable opportunity to reflect on the historical decisions taken in Maastricht in order to assess their significance and examine the subsequent evolution of the Union.

This volume brings together an international group of leading scholars in the field in order to provide such an assessment, with each article both looking back over the developments within each of these domains as well as looking ahead to the way in which the EU is positioned to address current challenges.

This book was published as a special issue of the Journal of European Integration.

Understanding and Assessing the Maastricht Treaty

THOMAS CHRISTIANSEN, SIMON DUKE & EMIL KIRCHNER

ABSTRACT This article introduces the collection of articles of the special issue and provides a discussion of the common themes linking these contributions. The article stresses the continuing significance of the Maastricht Treaty and illustrates the various ways in which the key reforms of the early 1990s still matter today. This includes not only the bearing that the decisions at the time of the Maastricht Treaty have had on the current crisis of the Eurozone, but also the developments in the areas of foreign policy and justice and home affairs. Indeed, the very move towards ‘pillarisation’ as well as key institutional changes such as the creation of the co-decision procedure and the elevation of the European Council all continue to play an important role today. The article concludes with some reflections about the legacy of the Maastricht Treaty, highlighting both the achievements of the treaty but also the shortcomings in terms of enhancing democratic legitimacy and engagement with civil society — indicating the key challenges that the Union still faces today.

Introduction

The purpose of this volume is to reflect on the continuing significance of the Maastricht Treaty, some 20 years after it was signed in 1992. It brings together a group of prominent scholars to discuss the most significant aspects of that historical reform and developments since. Each author was invited to consider the treaty’s importance within their respective area of expertise, in order to arrive at a comprehensive assessment of the contribution that the treaty has made to the process of European integration. In conceiving this special issue, the editors decided to focus on what are generally considered to be the main areas of reform in the treaty, commissioning contributions on the key policy-areas and institutional changes alongside the obvious contemporary importance of addressing the economic and monetary aspects. This brief introduction will attempt to give an overview of the principal issues or themes addressed, the main arguments presented and the conclusions arrived at. It will also draw together a number of common themes from these diverse contributions, one of which was apparent in the response by the authors to the editor’s invitations — namely, that we are still feeling the repercussions of the Maastricht decisions today, and that it is therefore still necessary to strive to understand the implications of this important treaty.

In the following we first discuss the historical context in which the Maastricht Treaty negotiations were conducted, which undoubtedly had an impact on the shape of the ensuing agreement, before examining a number of key aspects of the treaty which are discussed in much greater depth in the contributions to this volume: the creation of separate pillars for the Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA); institutional reforms, in particular the strengthening of the European Council and the introduction of the co-decision procedure in the adoption of legislation; the creation of the single currency and the provisions for Economic and Monetary Union (EMU). A final section of this chapter then discusses the impact that the treaty had on democratic accountability, civil society and legitimacy more broadly.

Historical Context

Twenty years ago, Europe — and indeed the world — were very different places. It is worth recalling that the treaty was conceived in the immediate aftermath of the Cold War and the collapse of the Soviet Union. This changed the conceptions of international relations and removed many of the certainties, however unpleasant, of the Cold War era with its bipolar structure and nuclear alliances. This was replaced with something altogether more difficult to understand, let alone categorise. The end of the Cold War also changed the conceptions of a Europe which had been divided by the Iron Curtain for the better part of four decades. The Europe that emerged in the aftermath of the implosion of the Soviet Union was surprisingly unchaotic, with the notable exception of the violent break-up of the former Yugoslavia. Mounting tension in the Western Balkans eventually led to war in 1991. The subsequent bloodshed, refugee movements across international borders, US backed military interventions and eventual (but uneasy) diplomatic settlements, were one of the main external catalysts for the creation of a CFSP, and thereby laid the foundations for the European Security and Defence Policy (ESDP) that followed a few years later.

These major events during the 1980s and early 1990s grabbed the headlines, but the European Community was also confronted with the implications of its development as an international actor in its more ‘normal’ business, such as trying to reach a successful outcome to the GATT Uruguay Round, contributing to the Middle East Peace Process or upgrading relations with important partners such as Japan. The external challenges collectively led to renewed interest in the idea of European Political Union which had been raised tentatively almost two decades before.

Another parallel development, promoted by a decision in 1985 to complete the Internal Market by removing all physical, technical and fiscal barriers by the end of 1992, led to the first concrete proposals for EMU in 1989. The two processes, political and monetary union, would become inextricably linked, most notably in the context of German unification.

Desmond Dinan’s contribution to this volume views the Maastricht Treaty as part of a continuum or process. As he observes a number of themes that surfaced in the intergovernmental conference and the treaty itself were recognised refrains in the language of European integration, such as questions of democratic legitimacy, supranationality, enlargement and more efficient decision-making. These are themes that are very much alive and well today, notwithstanding the merits or demerits of the Maastricht Treaty. The factors shaping the treaty were therefore the result of complex internal debates and positions, as well as attempts to react to a number of external shocks.

It was against the background of these international and internal developments that the Maastricht Treaty, or the Treaty on European Union (TEU) as it is formally called, was agreed at the December 1991 European Council. It was subsequently signed in Maastricht on 7 February 1992 and came into effect in November 1993. As it happens, the ratification of the treaty was something of a baptism of fire for the new ‘European Union’ since Denmark only ratified the treaty after a second referendum, following a first negative vote and the subsequent agreement on a number of opt-outs. A referendum in France in September 1992 supported the treaty only by the barest of margins, while in the United Kingdom demands for opt-outs from some of the social provisions almost cost the Prime Minister, John Major, his position after a bitterly fought vote of confidence. In Germany, ratification was held up until the Constitutional Court in Karlsruhe had approved it. These difficulties in ratification, unparalleled in the history of treaty reform, signalled the end of the so-called ‘permissive consensus’ of the European populations and spawned two decades of debates about the Union’s ‘democratic deficit’.

The bearing of the various internal and external factors on the shaping of the Maastricht Treaty have been subject to vigorous, if inconclusive, academic debate. Suffice it to say that the contributions to this volume suggest that the resulting treaty was shaped by a combination of internal, external and national impetuses. For some the treaty may be located within the context of the onward logic of European integration, while for others the progression towards monetary, or political, union did not represent universally desired ends but the state of thinking within the Franco–German engine in the early 1990s. As was observed above, the struggle to ratify the treaty suggests that even if there were universally desired ends, they were diluted significantly by the introduction of a number of national opt-outs as the price levied for eventual ratification.

‘Pillarisation’

One of the key novelties of the Maastricht Treaty was the creation of distinct ‘pillars’ with differing decision-making procedures. Essentially, the purpose of creating pillars for the Common Foreign and Security Policy (CFSP) of the Union and for Justice and Home Affairs (JHA) was to make the expansion of Union competences in these areas possible without applying the ‘Community method’ to these. In other words, the initiating role of the European Commission, the involvement of the European Parliament and recourse to the European Court of Justice were all extremely limited or excluded altogether. The new second and third pillars were conceived as intergovernmental arenas next to the supranational logic of the ‘Community method’.

In the case of CFSP, the emergence of a new ‘pillar’ raised a number of specific issues, as well as some broader questions about the nature of the Union’s actorness on the international stage. Michael Smith argues convincingly in this volume that the Maastricht Treaty, ‘institutionalised and embedded in the EU framework a hybrid structure of external relations which has fundamentally conditioned all subsequent attempts to establish an integrated EU ‘foreign policy’. Although later efforts were made, notably in the Lisbon Treaty, to tame the hybrid nature of the Union’s external relations it has retained much of its character from the Maastricht Treaty.

The ‘hybrid’ nature of the EU’s external relations, drawing upon heterogeneous sources or elements, was not entirely due to the Maastricht Treaty since the informal process of European Political Cooperation (EPC) — consisting of regular meetings of the Community’s foreign ministers outside of the formal structures — was the pre-cursor to CFSP. The Community elements of EU external relations, such as trade and development policy, were present at the inception of the Community and were therefore well-established by the early 1990s. The treaty therefore reflected and solidified the ‘mixed actor system’ it had inherited from earlier periods. It was clear in the intergovernmental conference preceding the adoption of the treaty that the foreign and security elements were of immense sensitivity to the member states and there was little change of them being communautarised. As the relevant chapter notes, the Maastricht Treaty embodied and magnified a number of competing logics with the effect that mean that the ‘EU occupies an essentially ambiguous position on key questions of world order’.

This essential ambiguity proved to be platform for subsequent attempts in Amsterdam, Nice and Lisbon, to resolve some of the underlying dilemmas posed by the treaty. These included how to provide the resources necessary for CFSP (and later ESDP/Common Security and Defence Policy [CSDP]); how to link the relevant parts of the pillars as well as the policies and instruments towards common goals; how the Western European Union (WEU) should complement or be associated with the EU; how to link together the different actors responsible for EU external relation; and determining at the strategic level what kind of goals and interests the EU wishes to promote and defend on the international scene.

In external relations terms the Maastricht Treaty has been conceived of as the ‘root stock’, onto which successive grafts have been attempted, all of which have attempted to address the effects of the EU’s ‘embedded hybridity’ in its external relations. The latest graft is obviously the Lisbon Treaty which attempts to bridge the pillars by introducing the High Representative who is also a Vice President of the Commission, as well as the European External Action Service (EEAS). Although the potential for more coherence, efficiency and visibility is present in the Lisbon Treaty, there are still the shadows of the Maastricht Treaty and the presence of a distinct second pillar which, as the Lisbon Treaty notes, is subject to ‘special rules and procedures’. While it would be easy to retrospectively criticise the flawed hybridity of the Maastricht Treaty, the treaty represents the consensus at that time and what was possible. The hybridity of the pillarised EU external relations established by the Maastricht Treaty has, however, proven enduring and been extended, or grafted, upon.

Moreover, despite this long standing hybrid framework and the associated ambiguities or lack of coherence which such a complex policy setting provokes, there has been considerable success in EU actorness in this field, as demonstrated, for example, by the over twenty CSDP missions which the EU has undertaken since 2000 with regard to peace keeping and peace building efforts in Europe, Africa and Asia. While the Lisbon Treaty clearly has echoes of the Maastricht Treaty in this context, the evolution of CSDP and the fact that the hitherto silent ‘D’ in CSDP is now included more explicitly in the treaty, is indeed testimony to the vigour of the necessary hybridity.

The Maastricht treaty also introduced a third ‘pillar’ to the European Union, JHA, which the Amsterdam Treaty subsequently renamed and refined to Police and Judicial Cooperation on Criminal matters (PJCCM). The third pillar designated asylum policy, immigration, as well as judicial, customs and policy cooperation, as areas of ‘common interest’. The Amsterdam Treaty would give the EU’s institutions full control over specific JHA policy areas like asylum and immigration.

Jörg Monar’s contribution acknowledges that of the three pillars, the third pillar was the thinnest, especially with the above refining in mind. Yet, this was also the policy area that spurned a dedicated Council formation, two Commissioner portfolios, two Commission Directorate-Generals and a dedicated European Parliament committee. One of the more remarkable facets of the Maastricht Treaty is that it formally introduced the Area of Freedom Security and Justice (AFSJ) into the EU based on what appeared to be inauspicious foundations marked by compromise on basic principles, non-binding texts and questionable parliamentary and judicial control. Somewhat perversely, it may be that the very weaknesses of the Maastricht Treaty amply demonstrated that this area of EU policy-making ‘needed clearer objectives, more effective instruments and — for the sake of its legitimacy — better parliamentary and judicial control’.

Despite its initial limited provisions, it would be wrong, as Monar suggests in his paper, to view ‘the Maastricht “third pillar” as a sort of failed first attempt’. He goes on to argue that ‘throughout the history of the European construction treaty reforms have played an important role as ‘enablers’ of its further development, and this is even more true in a case like the given one where a whole new policy field has been formally introduced by a treaty reform’. While most text adopted under the Maastricht provisions were non-binding, the Maastricht Treaty, as Monar points out, brought JHA cooperation decisively within the EU system and laid the foundations on which the area of freedom, security and justice (AFSJ) could be built after the Amsterdam Treaty reforms. As a consequence, the EU has asserted a kind of autonomy with the progressive harmonisation of judicial and penal law within the Union and the creation of legal instruments valid throughout the EU, particularly the European arrest warrant, the European evidence warrant, and the guaranteed mutual access to a standardised criminal database (Lavenex and Wallace 2006). Complementing these legal instruments are agencies such as Europol and Eurojust as well as the Police Chiefs’ Task Force.

Beyond creating specific conditions for decision-making in different areas, the pillarisation of the Union that was established by the Maastricht Treaty has also been as a fragmentation of the hitherto uniform development of the Community. For instance, we have already seen that the price of ratification were the opt-outs negotiated by Denmark and the United Kingdom. Denmark negotiated four opt-outs (EMU, CSDP, JHA and EU citizenship) as one of the necessary concessions for the eventual successful referendum on the treaty in 1992. The United Kingdom negotiated an opt out from the Social Charter in 1991 (although this was later abolished in 1997 by the incoming Blair government but others were added). There are now five countries with opt-outs (in addition to Denmark and the United Kingdom, Poland, Ireland and Sweden have opt-outs although in the case of the latter it is of a specific nature). The idea of opt-outs went against the functionalist logic of European integration by opening up the possibility of a variable speed Europe and, with the 2004 enlargement in mind, raised the spectre of double-standards since for the new EU members opt outs were not an option (whereas lengthy transition periods for labour market access for workers from the accession states were introduced). In his contribution Desmond Dinan presciently observes that the Maastricht Treaty stands out not only for its ‘inherent importance but also because of the public reaction it generated’ which signalled a ‘growing unease with the nascent EU’.

A further notion introduced by the Maastricht Treaty, which also proved contentious, was the principle of subsidiarity. The principle states that:

… the Community shall take action… only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this treaty.

Although the principle existed implicitly prior to the Maastricht Treaty, its explicit recognition in the treaty was to open up debates about whether this strengthened the states, regions or even local government vis-à-vis the EU, or vice versa.

Institutional Reform

The ‘pillars’ of the Maastricht ‘temple’ were meant to be held together by an institution — the European Council — that had been previously present but which received much greater significance from the 1990s. As Wolfgang Wessels points out in his contribution, the European Council was not listed in the treaty among the institutions of the Community — and as such was also exempt from judicial review of its actions — but was designed as an over-arching structure that would hold together the various elements of the Union. Thus it can both be seen as a symptom of pillarisation and as an attempt to overcome the problems arising from it.

With Maastricht, the European Council’s role at the summit of the Union’s architecture was confirmed and expanded. Not only did the European Council continue to set the broad agenda and strategic direction for the Union’s legislative programme, but it also became the ultimate decision-making body with regard to both CFSP and EMU. Wessels’ contribution charts the gradual evolution and growth of the institution, in which Maastricht was a significant event. While summitry in the area of CFSP proved to be uncontroversial, the European Council’s elevated role in decision-making about the Euro would in time turn it into the crucial forum for crisis- management. As will be discussed below, in recent years the cooperation among Heads of State and Government in the context of the European Council was essential in dealing with the fall-out of the sovereign debt crisis. Wessels detects already at the time of Maastricht evidence for the emergence of a ‘presidency model’ in the work of the European Council, something which is reinforced after the Lisbon Treaty when Herman van Rompuy took up his position as President of the European Council, replacing the rotating Presidency at this level. Dinan goes to suggests that the European Council emerged ‘as the centre of political gravity’, in no small part due to the Eurozone crisis and the frequent meetings.

Besides an expansion of Qualified Majority Voting (QMV) and the establishment of a European citizenship, a profound change was introduced by the treaty with respect to the co-decision procedure, making the European Parliament a co-legislator with the Council of Ministers (or the Council). As Dinan reminds us, this was due in part to the recognition of the principle of democratic legitimacy which underlay earlier efforts to strengthen the role of the European Parliament. The co-decision procedure did more than anything else to transform the role of the European Parliament vis-à-vis the other institutions. Although there is disagreement about the relative balance between the institutions, the very fact that post-Maastricht the Council and European Parliament were required to agree on almost all of the legislative compromises, ushered in a far closer working relationship between the bodies.

The procedure undoubtedly introduced complexity into the Union’s procedures, with up to three readings being necessary for a legislative deal on ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• 1. Understanding and Assessing the Maastricht Treaty
• 2. Still Rooted in Maastricht: EU External Relations as a ‘Third-generation Hybrid’
• 3. Justice and Home Affairs: The Treaty of Maastricht as a Decisive Intergovernmental Gate Opener
• 4. Twenty Years of Co-decision Since Maastricht: Inter- and Intrainstitutional Implications
• 5. The Maastricht Treaty and the European Council: The History of an Institutional Evolution
• 6. The Maastricht Treaty at Twenty: A Greco-European Tragedy?
• 7. ‘Maastricht Plus’: Managing the Logic of Inherent Imperfections
• 8. Post-Maastricht Civil Society and Participatory Democracy
• 9. In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration
• 10. The Arc of Institutional Reform in Post-Maastricht Treaty Change
• Index