Constitutional settlements and the citizen after the treaty of amsterdam

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Jo Shaw1
Paper prepared for: K. Neunreither and A. Wiener (eds.),

Beyond Amsterdam: Institutional Dynamics and Prospects for Democracy in the EU, Oxford University Press, Oxford, 1998

I Introduction

This chapter focuses on two related questions: the construction of the citizen as a constitutional figure in the European Union, and the interpretation of the new constitutional settlement for the Union after the Treaty of Amsterdam. The two issues are related in the following way: citizenship in this paper is less an object of study in itself, and more an optic for understanding the development of institution-building and polity-formation in the Union context.
The chapter is in two parts. The first part amplifies five assumptions underpinning my study of ‘the citizen’ after Amsterdam. (1) Citizenship in its EU context is to be understood as a form of postnational membership, the relevance and scope of which extends beyond the formal terms of the Treaty provisions establishing the category of ‘Union citizens’. Issues of democracy and polity-formation form important contextualising reference points for understanding citizenship in the constitutional sense. More specifically, there are two central elements in a conception of citizenship which focuses on the EU dimension: the problem of identity in a transnational polity, and the challenge of identifying a form of ‘full membership’ in the specific socio-economic and geo-political context offered by the EU at its present stage of development. One way of understanding these elements is to feed them into the characteristic dualist approach to citizenship, comprising aspects of ‘identity’ and ‘rights’. The dualism does not stand alone, however, as there continues to be an ongoing tension between the sometimes competing and sometimes congruent aspects of identity and rights within citizenship. This is negotiated in the ongoing ‘experience’ by individuals of ‘their’ citizenship, and the ongoing ‘practice’ of citizenship by institutional actors such as the Commission and the Court of Justice. (2) The EC/EU must be studied as a transnational polity-in-the-making characterised by shifting and dynamic forms of multi-level governance. However, much legal and political scholarship points to the key role played in this polity by legal institutions and the transnational ‘rule of law’ policed by the Court of Justice, thereby constituting a system which locks the Member States in. One characteristic means of revealing some of the contradictions inherent in the emergent polity has been by reference to an ongoing tension between its ‘hard’ legal core and its ‘soft’ political contours. (3) In this polity-in-the-making, democracy remains both a conceptual problem and a practical challenge, requiring multi-level and multi-actor solutions which are ‘beyond the state’ and, perhaps, also beyond the conventions of western-style representative liberal democracy. (4) Intergovernmental conferences and Treaty-making moments may highlight those times when the EC/EU is quintessentially the creature of the Member States. But IGCs and Treaties must themselves be seen in context: they are framed by periods of prior debate and negotiation which involve actors other than national governments; once in place, they are subject to interpretation by courts (especially – and authoritatively according to its dictates – by the Court of Justice) and ‘management’ by the institutions as well as the Member States. They are ‘owned’ then by a broader interpretative community. (5) The final assumption goes to the question of method: I suggest that the best way to study the Treaty of Amsterdam, and its context, in the light of these comments is as one step in an ongoing process of constitutional settlement (or indeed unsettlement). It enhances constitutionalism in the EU, by adding to the body of rules and basic principles needed to make a political system work and to control the exercise of political power. It will be clear, therefore, that this chapter is written from the perspective that, although modest in ambition and conception and lacking the single ‘big idea’ which has driven the agenda of earlier IGCs such as Maastricht, there are aspects of the Treaty of Amsterdam which require consideration and categorisation within a constitutional frame of reference.
What remains unclear is the extent and significance of the changes it brings about. How far has constitutionalism now carried the Union? Do the existing rules and principles cover mechanics and function alone, and eschew issues of content, such as the question of the nature of a ‘European’ society or political community based on the EU? What role does the ‘citizen’ play in this emerging constitution? In the second part of the chapter, using this frame of analysis, I shall argue that it is possible to derive from the Amsterdam Treaty some evidence of a gradual move from a form of constitutionalism covering just basic rules of design and operation, to a more substantial constitutional conception which delivers a clearer (but still incompletely formed) picture of the content of the EU-polity. For these purposes, the constitution of the citizen in legal and political discourse is a vital tool for constructive analysis. Constitutions are clearly about more than just citizens and citizenship, but in many respects the shifting nature of the EU as a polity is increasingly emphasising the role of the citizen. This is especially so as a matter of rhetorical commitment (‘getting the citizen involved’, ‘giving the citizen a stake’), but in addition I would also suggest that what might be termed a ‘thicker’ conception of Union citizenship is emerging, which is central to the development of the EU’s constitutional frame. I use the term ‘thicker’ not in order to make a distinction between process and substance in the context of the management of polities (Walzer, 1994, p.11-15), but in order to distinguish between a minimal set of universalist prescriptions, essentially of a moral nature, and a maximal set of particularist values. Thus while we will probably all agree that we are for freedom and against tyranny, a community of interest which shares a view as to exactly why we have these views and what outcomes we want to see would be of a more particularist and therefore maximal nature. Positing the figure of the citizen as central to the evolution of the integration process is motivated partly by the normative preconception that ‘good’ constitutions are not imposed from above, but emerge from a conjunction of top-down and bottom-up forces involving institutional design and citizen participation. It is also driven by the observation that the correct frame of reference for studying ‘European integration’ should not be limited by the formal EU institution building process, but should comprise also ‘the multiple social processes that have promoted the integration of economic, political, and social life within the larger European framework (Klausen and Tilly, 1997b, p.4).
Hence the second part examines a number of aspects of the constitutional settlement after Amsterdam relevant to the dynamic constitution of the citizen. (1) The first concerns practical and theoretical problems resulting from the proliferation of polities which the increasingly differentiated Union now envisages. The ‘hard’ legal core is called into question by the attempted ‘constitutionalisation’ of flexibility or differentiated integration. This extends across the first pillar enabling arrangements, the new third pillar, and especially the newly communitarised old third pillar and Schengen arrangements. Can there be citizens or members of the multiple polities which the flexible arrangements may in the future give rise to? (2) In the citizenship provisions themselves, one key change is made: Union citizenship is confirmed as complementing not replacing national citizenships.2 This small change may seem commonplace to students of Union citizenship, and may be intended as a reassertion of national sovereignty in the sense of the power of definition. Paradoxically, it simultaneously confirms the open-textured nature of Union citizenship which is its greatest conceptual strength. (3) Like other EC/EU Treaties before it, the Treaty of Amsterdam appears ambiguous as to whether it implies ‘more’ or ‘less’ Europe – the traditional cleavage in the context of European integration between intergovernmentalism and supranationalism/federalism. I shall argue that what emerges in the Treaty of Amsterdam is a greater awareness of other competing models for socio-economic development, for example, between the competing perspectives offered by regulated capitalism and market capitalism. More relevant to our purposes, I examine the very different visions of the citizen and notions of political community evoked by the ‘area of freedom, justice and security’ and the ‘European social model’. What implications does this have for the future of an ideal type of ‘full membership’ of the European Union, for the practice of European Union citizenship, and the emergence of some form of European political community which supports a notion of membership? (4) Finally, we shall conclude by looking at the rights dimension of EU citizenship which has been given a considerable amount of not always very flattering attention in the literature thus far. Turning to the Treaty of Amsterdam, formal changes in the status of individuals as holders of rights under EC law are, I would argue, more limited than might at first blush appear: the transparency provisions are concerned with the institutional economy and inter-institutional balance; so far as they affect individual citizens, the fundamental rights provisions essentially restate Court of Justice case law; and the much lauded non-discrimination provision is merely a tightly worded law-making power which may never be exercised. What significance should we now ascribe to the rights core of Union citizenship?

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