Acceso usuarios
Colette Mazzucelli
I. Introduction [1] The aim of this article is to contribute to our understanding of the legal and political dimensions of treaty reform in the European Union (EU). It raises a conceptual issue by addressing the conditions under which Chancellor Kohl yielded to an increase in sub-national influence and the extent to which Länder (Federal State) politicians were able to exercise that influence to determine the outcome in a key area during the Amsterdam European Council, 16-18 June 1997. (3) The initial section highlights a political and legal analysis of German politics and European treaty reform during the 1996 process. The second section explores emerging asymmetrical specificity on the German political and institutional landscape post-Maastricht. The closing section offers an explanation of the results in qualified majority voting (QMV) for the treaty provisions on freedom, security and justice at Amsterdam, and the implications for our understanding of treaty reform in the Union.
II. CDU-CSU Politics and Länder Influence: The Legal and Political Basis for European Treaty Reform [2] Moravcsik's use of intergovernmental institutionalism to explain the Single European Act (SEA) as "conventional statecraft" (4) and liberal intergovernmentalism in his analysis of significant cases of treaty reform in the history of European integration emphasizes the need to explore the domestic politics of the member states to understand the reasons why cooperation occurs. (5) [3] An analysis of domestic politics in order to understand why states in Europe choose to integrate is necessary for several reasons: to indicate how national interests are constructed; to offer clues about the strategies states may adopt to realize their goals; and to provide information about the requirements necessary for an international agreement to be ratified in the domestic arena. (6) [4] In their article analyzing federal ideals and constitutional realities in the Treaty of Amsterdam, Moravcsik and Nicolaïdis identify "a diminution (or levelling off) of national interest" in European integration. Their findings indicate a "lack of compelling and compatible substantive national interests in deeper, more uniform cooperation", even in areas like immigration, asylum and policing, for which somewhat greater incentives to cooperate exist. (7) [5] Their argument is contrasted by that of Goetz who makes the point that, in the context of the IGC, in the German case "the national and the European interest have become fused to a degree which makes their separate consideration increasingly impossible". (8) [6] Moravcsik and Nicolaïdis explain that opposition from some of the other Union member states to an extension of QMV at Amsterdam might have been overcome if not for German "reticence". Pressure against QMV from the Länder is highlighted particularly on third pillar issues that are identified as "especially sensitive" in domestic politics. (9) [7] This article offers an intricate explanation regarding the interplay between coalition politics and Länder influence and its impact on Kohl's decision about QMV in the Council. It explores the German interest in integration as a divisive issue in domestic coalition politics. A potential for coalition politics to act as a "break" on the traditionally decisive leadership exercised by the Federal Chancellor in EU treaty reform is underlined. (10) [8] At Amsterdam, sensitivities about sovereignty regarding EMU within Kohl's coalition and the impact of Article 23 in the German Basic Law, meant that the Chancellor could not override domestic opposition in the name of European federalist ideology. (11) The German interest is grounded in the legal and political realities determined by shared power in a federal system of government.
[9] In this environment, politics within the Christian Democratic Union-Christian Social Union (CDU-CSU) coalition and Länder influence may be most cogently explained in the Amsterdam context by reference to an actor-centered approach within two-level games. Why? [10] In terms of domestic-European interactions, the Länder relied on a domestic constitutional change as a result of the ratification of the Treaty on European Union (TEU), "Maastricht", to maximize their leverage within the German delegation at Amsterdam. (12) This was possible because the implementation of Maastricht resulted in deeper inroads by European integration into policy-making shared by the Bund (Federal) and Land (State) levels in the Federal Republic. More importantly, the changes ushered in by the TEU, particularly the drive to achieve the last stage of Economic and Monetary Union (EMU) and the crucial vote on its membership, led to a specific and unprecedented type of link between domestic party politics within the CDU-CSU coalition and specific Länder objectives for treaty reform at Amsterdam.
[11] In order to assess the extent to which states were the decisive actors at Amsterdam, we analyze the domestic actors within each state to explain their interests. Waltz writes, "....The actions of states, or, more accurately, of men acting for states, make up the substance of international relations...." (13) Here Gary Marks' actor-centered approach is relevant. In Marks' view: "....From an actor-centered perspective states are the institutional context of domestic and international politics providing a context of rules for authoritative decision making. States are not actors. Hence political leaders in positions of state authority are the principal (although certainly not the only) actors in the international system...." (14) [12] Only a 20-month period bridged the close of the final ratification of the Treaty on European Union in the Federal Republic of Germany, in October 1993, and the opening of discussions on its reform in the Reflection Group under the Spanish Presidency of the Council in August 1995. A relevant counterfactual this article addresses is whether the modified constitutional status of the Länder introduced by the Europeanization of national politics post-Maastricht forced Helmut Kohl (Chancellor of the Federal Republic of Germany, 1982-1998) to modify the national negotiating position at Amsterdam in the important area of qualified majority voting. Here it is necessary to bear in mind that Kohl had consistently advocated an increase in QMV in the Council of Ministers since taking office as Federal Chancellor.
[13] As a prominent German analyst of the European scene explains, the post-unification philosophical debate focuses on "Germany's normality." There are two interpretations of the past's meaning that frame the intellectual debate to shed light on the future course of German power and interests. Basically, this is a debate in which "traditionalists," or those who see their own views closely approximating those of realists, position themselves vis-à-vis "modernists" whose concerns are directed at analyzing the emergence of a global society and arguing for a need to develop cooperative, if not integrative, structures to manage its problems, preserve its norms and govern its institutions. (15) [14] For the modernists, the logic of integration emphasizes the nurturing of institutions to guide economic interdependence in line with the basic tenets of West Germany's postwar foreign policy since Adenauer. The line of thinking supports the empirical research of Rometsch and Wessels in which the two scholars posit that institutions on the national and European levels do not act independently from each other. On the contrary, Rometsch and Wessels conclude: "Thus, we can hardly locate the actions and responsibilities of national and European institutions since both are equally affected by, and involved in, the EC decision-making process. They are characterized by a trend toward 'institutional fusion' in terms of mutual influence and interdependence." (16) [15] Waltz's images and the analytical perspectives previously highlighted are tools that relate to the actor-centered approach because of the focus on individual political leaders acting for states in international relations and the parochial domestic constraints liberal analyses highlight. The relevance of two-level games is evident in cases when heads of state of government intend or are required to shift responsibility for key decisions to a sub-national authority. (17) Let us now turn to an empirical analysis of German participation at Amsterdam.
III. "This Bavarian carping about Europe" -- Identifying Asymmetrical Specificity in a Political-Institutional Context [16] Almost immediately after the entry into force of the Treaty on European Union in November 1993, Chancellor Kohl's ruling coalition, the Christian Democratic Union-Christian Social Union (CDU-CSU), was divided over the issue of Europe. The essence of the debate was expressed by Edmund Stoiber, the Minister President of Bavaria and the strongest personality within the rank and file of the CSU, the Bavarian sister party of Kohl's Christian Democrats. In a blunt dismissal of German "unrealistic dreaming" about European integration, Stoiber expressed his own views about the future relations with Germany's neighbors on the continent: "I want a simple confederation. That means the nation-states maintain their dominant role, at least as far as internal matters are concerned." (18) Stoiber's remarks revisited the issue of the type of structure Germany aimed to build in Europe whereas for Kohl integration was the only alternative to conflict.
[17] The fundamental nature of change in integration signaled by the Treaty on European Union, particularly EMU and legislative co-decision between Council and Parliament, offered Bavarian representatives the opportunity to make the case against the approach taken to reform integration via the Maastricht process. (19) The talented nature of Bavaria's officials in Munich, Bonn and Brussels and the thorough preparation of its positions on integration during the 1996 IGC supplied the means. Other Länder, Bund-representatives and EU civil servants had to contend with Bavarian arguments, whether they liked the nature of those arguments or not. In other words, with its talented team in Munich and the biggest Land delegation in Brussels, Bavaria had an advantage in its access to information that impacted positively on its role as an IGC agenda setter. Bavaria had its own distinct positions that were formulated very early. Some of the other Länder, like Baden-Württemberg, had their own team of experts; others that were less well prepared accepted Bavarian positions by default. Thus, the Bavarian delegation was seldom alone in the game of coalition building. (20) [18] In our analysis of CDU-CSU coalition politics and Länder institutional influence in the Bundesrat during the 1996 process, it is not possible to speak of three levels of analysis, European, federal and Land, in treaty reform. This is because, unlike the negotiations that characterize European Community policy-making, the federal government speaks for the Länder during IGC talks in Brussels. (21) Here Stoiber's direct access to Kohl is important to bear in mind. Together with Rhineland-Palatinate Minister President Kurt Beck, Stoiber attended three meetings with Kohl on 12 December 1996, 15 May, and 12 June 1997. Each meeting addressed Bund-Länder relations regarding issues of internal security and judicial policy in the IGC context. (22) [19] The unity of Länder positions throughout the Maastricht negotiations, which undoubtedly enhanced their leverage in the subsequent domestic ratification, is highlighted by two-level analysis. (23) However, throughout the 1996 process, it was evident that differences emerged between the positions taken by a majority of the Länder politicians and those taken by Stoiber, a minimalist dissenter under whose leadership Bavaria manifests the "politics of competence assertion." (24) Bavaria's position during the 1996 process was a strong one given its role as one of two Länder representatives within the German IGC delegation. (25) The Bavarian interest was expressed in Länder position papers about the IGC circulated to embassies of the other Union member states in Bonn. These papers revealed that Bavaria's positions were closer to those of Britain's Prime Minister Major than to Chancellor Kohl's, with a clear articulation of Bavarian interests for a Union whose decision-making powers remain firmly in the intergovernmental tradition. Among the priorities emphasized were consensus rule, limited initiative for the Commission in the Common Foreign and Security Policy (CFSP or the second pillar) and Justice and Home Affairs (JHA or the third pillar), and minimal scope for the European Parliament in making of European legislation.
[20] More importantly, the German interest defined by the Kohl government for greater scope in qualified majority voting to increase the efficiency of the Union's policy-making was rejected. In a Bundesrat decision, "Demands of Germany's Federal States on the Occasion of the 1996 Intergovernmental Conference," the Länder asked for a double majority in the Council by which resolutions would be adopted if approved by a majority of the Union's member states and a majority in the population represented by these states. (26) How do we explain Länder influence during the 1996 IGC? [21] Throughout the history of European integration the Länder have consistently sought to increase their power vis-à-vis the German federal government and the European institutions. (27) In the mid-1980s the SEA negotiation and ratification increased the Länder's influence in the making of European legislation. (28) The Maastricht Treaty anchored the role of the Länder in European Union affairs constitutionally in a new article in the Basic Law. Article 23 of the Basic Law provides an implicit recognition of the domestic nature of European policy making. (29) [22] If we analyze the historical record of Länder interests, evidence confirms Länder support for European integration. Traditionally, a pro-integrationist stance has been a means to increase their leverage vis-à-vis the federal government in the making of European legislation in Länder areas of competence as specified in the Basic Law. Evidence indicates that the commitment to federalism in the postwar German polity may be identified as a primary source of general Länder support for European integration. A secondary source is economic interest in that individual Länder also gain from cross-border trade and exports to other Union member states. Geographic and economic interests may explain why the Bavarian conception of Europe is one in which integration does not threaten its internal security in the areas of free movement of persons, immigration and asylum. It is also essential to consider Bavaria's special role as the oldest historically, the largest in territory as well as one of the richest in GNP and population among the sixteen Länder.
[23] All things considered, the Länder's collective concern at Amsterdam was rooted in their competence in the areas of internal security and justice within the Federal Republic as defined in the German Basic Law. The Länder's capacity to influence European policy-making, however, depends "on their ability to act collectively and to form coalitions." As a German scholar observes, the increasing asymmetry among the Länder makes this less likely in the future. Asymmetrical capacities and resources ensure that the Länder differ sharply in their capabilities to meet administrative and political challenges stemming from changes introduced by successive European treaty revisions. Smaller and weaker Länder, therefore, must choose among three rather unattractive options: increasing personnel and administrative resources; increasing their dependency by asking the federation for more subsidies; or limiting their participation in European affairs which permits the stronger Länder to exercise a representative function. (30) [24] It is the third option that is the de facto result if we consider Länder influence during the 1996 process. As Goetz explains, only Bavaria and North-Rhine Westphalia are credited with committing sufficient resources to deal with EU issues. In his words, Länder administrators remain "highly susceptible" to the lead of Federal officials in these policy matters. (31) In accordance with Article 23 of the Basic Law, Bavaria and the Rhineland-Palatinate were the Länder's representatives in the German delegation throughout the IGC. This fact alone gave Bavaria a decisive advantage when negotiation positions were coordinated among Länder governments. If we factor in to Bavaria's advantage its weight as the Land of the partner in the ruling coalition, it is possible to discern a legal-political dimension to its role in the Amsterdam context.
[25] The coalition status distinguished Bavaria's influence on the federal government's negotiating hand during the Amsterdam European Council from that of the other Länder. Stoiber's personality and political acumen undoubtedly played a significant role in forcing Kohl to modify his hand at Amsterdam. Specifically, the Minister President's interpretation of Länder competence to shape European treaty reform must also be acknowledged. In addition to Article 23 of the Basic Law, the Agreement between the federal government and the Länder governments about cooperation in European Union affairs, dated 29 October 1993, defines the Länder's prerogatives as part of the German delegation to the IGC. (32) IV. Kohl Goes to Canossa: The CDU-CSU Connection, Dual Lock, and QMV at Amsterdam [26] In the end phase of the Amsterdam conference, Article G in the Dutch Presidency's compilation of texts in the area of freedom, security and justice, dated 14 May 1997, initially envisioned an automatic passage from unanimity to qualified majority voting after a three-year transition period. (33) Kohl strongly advocated the Dutch Presidency's initiative. In fact, it was based on what the Dutch believed was possible to achieve in an agreement among the member states at Amsterdam. (34) [27] Here it is essential to recall that the German Chancellor was the author and champion of the third pillar in the Treaty on European Union. The inclusion of Article 100c on immigration and visa policy within the community sphere of decision-making was intended to function as a passerelle. In other words, 100c was placed in the first pillar of the TEU with a close link to justice and home affairs articles in the third pillar. It was generally believed that the decision taken at Maastricht would reveal the limits of intergovernmental cooperation in the third pillar. This result was expected to prompt the European Council to take more decisions to increase the scope of community decision-making at Amsterdam.
[28] This is why it was all the more surprising to some that Kohl was obliged to revise his negotiating stance on a number of issues all related to the free movement of persons, asylum and immigration. The pressure on Kohl from the Länder in this area is legally grounded in their shared responsibility for immigration in the German federal system. Some participants at Amsterdam understood better than others Kohl's realization that he had gone too far by originally agreeing to QMV in an area that was not the sole prerogative of the federal government.
[29] In the midst of negotiations at Amsterdam, the Federal Chancellor changed his mind and decided to retain unanimity in Council decision-making for the area of freedom, security and justice during the initial five-years after the Treaty of Amsterdam was ratified by all Union member states and the European Parliament. Kohl explained, in support of his reversal, that an average of 45-60 per cent of all refugees who sought asylum in the Union remained in the Federal Republic. (35) Länder officials estimated that close to 80% of the asylum procedures within the EU were conducted in Germany. (36) [30] Several factors came into play simultaneously on the domestic scene to influence the result on QMV at Amsterdam. First, the deterioration of Germany's public finances hurt Kohl's negotiating hand by weakening his coalition government. Second, Edmund Stoiber used his Euroskepticism to boost his own leverage and political profile in the Bundesrat by preventing Kohl from agreeing to further advances in European integration. A further complication arose as Kohl countered Stoiber on EMU. By shrewdly taking advantage fears in German public opinion that France and Italy could not meet the convergence criteria, the Bavarian Minister President pleaded for a "controlled delay" in EMU. In order to save his coalition, Kohl reiterated his strict attitude on EMU. This led to a dispute in the area of macroeconomic policy on the eve of Amsterdam that surfaced as yet another hindrance to a constructive Franco-German negotiating line across a broad range of issues. Third, the Opposition Social Democrats enjoyed a majority in the Bundesrat upon which Kohl depended to make policy. (37) [31] German civil servants closely involved in the IGC confirm that throughout the 1996 process a number of Länder objectives were channeled more through political parties, highlighting coalition politics, and less through the institution of the Bundesrat. (38) This fact forces us to confront Europe as an issue around which cleavages within domestic political coalitions may hinder states' actions as rational and unitary actors. (39) It also raises questions about the evolving European orientation within the CDU-CSU that, as the coalition led by Adenauer and Kohl, has voiced consistent support for integration since its inception. (40) [32] Goetz emphasizes that, "The European project has long ceased to be an external influence on the development of the German state and has, instead, become part of its basic rationale". (41) The search for the national, as opposed to the European, interest is, in his words, "a fruitless task". Our findings in this case reveal divergent conceptions of the national interest within the coalition whose senior partner consistently produced the Federal Republic's European leadership since its birth. This last point compels us to explore more carefully what Moravcsik and Nicolaïdis define as "the existence of stable underlying preference functions grounded in structural characteristics of domestic politics". (42) More likely than not, a particular focus on the internal composition of the CSU within the ruling coalition during the Amsterdam conference would indicate the salience of individual political leadership as opposed to the divisiveness of factionalism in party politics. (43) [33] The impact of CDU-CSU coalition politics at Amsterdam leads our analysis to the role of the dual lock. As explained by Bruno de Witte, in the European Community (EC) legal system one aspect of the "intergovernmental counterpoint" is the diplomatic character of the treaty revision process. Constitutional reform through international agreement and the dual lock, or unanimous consent and ratification by all member states, are two elements that define this diplomatic character. (44) In addition to the immediate need to save his coalition, the requirements of domestic ratification, explained by two-level analysis, forced Kohl's hand. Political and legal dynamics interplayed as the actions of individual political leaders, Kohl and Stoiber, determined a key outcome on QMV.
[34] What is the significance of the turn of events at Amsterdam for our understanding of treaty reform in the European Union? First, this case underlines the fact that European treaty reform over time has become an intrinsic part of the Politikverflechtung or entangling characteristic of the German federal system. (45) Legally and politically we are witnessing not only the Europeanization of domestic politics, but, more importantly, the gradual domesticization of IGC treaty reform.
[35] The legal basis for the Länder's participation in the 1996 process, the agreement between the federal government and the Länder governments about cooperation in European Union affairs, is a direct consequence of the Maastricht ratification and subsequent domestic constitutional change: the inclusion of Article 23 in the Basic Law. (46) However, the interaction of coalition politics and Länder influence occurs in the context of unprecedented legal and political dynamics that increasingly bind the European, federal and Land levels in a sui generis polity.
[36] Second, the importance of QMV in the area of freedom, security and justice relates to its association with the dynamics of the internal market. In the aftermath of a "closed" Maastricht process, political leaders in the European Council sought to bring European integration closer to citizens via policy initiatives with a popular resonance. In Germany, the legal basis of its federal system, grounded in the subsidiarity principle, insured that the Länder would play a role in treaty reform in these areas. The role that emerged for Bavaria, however, had as much, if not more, to do with CDU-CSU coalition politics and the personality of its leader, Edmund Stoiber.
[37] Stoiber forced Kohl's hand at Amsterdam, acting as a minimalist dissenter who led Bavaria to exercise the politics of competence assertion. The German Chancellor's innate understanding of the prerogatives of the Länder Minister Presidents in Germany's federal system made him realize that he had gone too far in his original agreement on QMV for ratification to be successful. The fact that Germany was the first to ratify the Amsterdam treaty attests to the soundness of Kohl's decision.
[38] Although Stoiber relied on the increased Länder competence vis-à-vis the federal government in European affairs, the more immediate threat to the CDU-CSU coalition and the politics of the EURO within Germany exerted pressure on Kohl regarding the issue of QMV at Amsterdam. The CSU political leadership, the sixteen Länder's shared responsibility with the federal government in key areas under discussion and their modified constitutional status post Maastricht were all factors in Kohl's decision. Although their combined weight led the Federal Chancellor to change his mind in favor of unanimity in Council decision-making, divergent conceptions of the German interest in European integration within the CDU-CSU coalition tilted the balance in favor of this decision. The implications of this fact may be evaluated over time in subsequent cases of EU treaty reform.
[39] As the European Union faces successive waves of enlargement in the years ahead, the lessons we draw from coalition politics and Länder influence at Amsterdam may help us grapple with an intrinsically more complicated set of institutional, legal and political relationships in the IGC process. For the leaders of the member states within the Union, as well as for those whose states seek to join the European family, each new IGC is a way of seeing and then seeing again within their respective polities. The national interest endures. The findings in the German case affirm that this interest defines, as it is simultaneously influenced by, the evolution of integration. In Germany's Europeanised polity, the impact of changes resulting from successive IGCs from the SEA through Amsterdam, 1985-99, has been more inherently domestic.
[40] In this context, the quick pace at which internal bargaining occurs between national administrations and their representatives at IGC meetings in Brussels often creates its own dynamic. For some participants, this is the art of negotiation in European treaty reform. In the minds of others, the resulting legal texts of the treaties reflect the political reality of the negotiations. Either way, with each IGC it becomes increasingly difficult on legal grounds to oppose decisions agreed to in European treaty reform even though, owing to political pressures and linguistic differences, the legal drafting is at times not the best.
[41] Much ado was made of Kohl's decision at Amsterdam. In hindsight, the area of freedom, security and justice stands out as one of the major accomplishments in the Amsterdam treaty. This is because, in seeing and then seeing again en route to Canossa, Kohl repented. Ironically, his recognition of the only compromise possible at Amsterdam led the German Chancellor to pave the way for what has since emerged as
