"Checking and balancing polity-building in the EU" by Deirdre Curtin
01 September 2005
“Is the Council aware of any website maintained by a European public authority which is better designed to frustrate the ability of citizens to access information than that of the Council of Ministers?” [1]
From Market to State?
The days of the European Union being what some termed a “market without a state”[2] or a “stateless market” [3] is long past. Back in the days before the Treaty of Maastricht and the leap to more overtly political integration, the European integration process could indeed be conceived as in its core about the construction and consolidation among the constituent Member States of a free market (an “internal market”). It was a fairly win-win scenario with markets being opened up for the benefit of traders and consumers by a combination of judicial activism, legislative harmonization, mutual recognition of (product) standards and technical standardization. There were of course inroads made into national sovereignty and national laws had to be disapplied on occasion but the inroads were in the field of economic law (and later some “flanking” issues such as the environment and consumer protection). Of course all of this could be considered necessary foundations in order to achieve the long term goal of a more political federation. This is certainly what the federalists and neofunctionalists believed, the integration process was moving forward step-by-step towards – some day - a more overtly political union. In the meantime what was termed (and largely accepted by the so-called passive consensus that existed among the national political classes) “integration by stealth” could progress, little by little, with the bureaucrats (and at times the judges) firmly in the driving seat.
The Treaty of Maastricht can in many ways be considered the very explicit crossroads, the moment that the EU’s politicians signalled both internally and externally that it would henceforth also be integrating areas such as justice and home affairs within the institutional framework originally conceived for purely market integration. Gradually as the decade of the Inter-Govennmental Conference advanced (in the 1990’s) changes were made in the legal frameworks and the legal instruments in a manner that consolidated ambitions in this - qualitatively different - area. The scenario shifted at the same time from a relatively optimistic win-win one to a more troubled scenario with very clear winners and losers.
The winners in this incremental process have this time not been individual citizens or companies but rather their statal executive counter-parts in the constituent Member States themselves and at times at the central EU level too. Thus we have seen the powers increased and the role strengthened of substate authorities such as the police, customs and enforcement authorities more generally. Moreover we have seen the establishment of more operational executive type bodies at EU level itself (such as Europol and the External Borders Agency) as well as extensive databases being administered by EU institutions (for example in the case of SIS II it is proposed that it will be managed jointly by the Commission and the Council General Secretariat [4], in explicit recognition it seems of the split nature of the EU executive).The losers, sadly, have tended to be the individual citizens and noncitizens who have seen their rights and interests adversely affected by the changes that have been made and their civil liberties often challenged and eroded.
For more than a decade the European Union has as a matter of empirical and normative fact been more than a market with or without a state. That “more” has ever so incrementally grown to the point that one can in my opinion consider the EU to have inched closer towards what it means to be a “state” in today’s world. This is not to say that the EU can be compared in all respects to a state – this is clearly not the case. But what it has done is in the past decade or more<