This article is based on research presented at the UACES Graduate Forum Research Conference 2022 (23-24 June, at FASoS, Maastricht).
In most historiographic accounts of European integration, the Maastricht Treaty marks an important step forward on “the long road to unity”. It is described as heralding a new politics of European integration or marking a moment of transformation and refoundation. For example, in their recently published textbook, Dawson and De Witte describe the Maastricht Treaty as “the most significant Treaty revision of the EU to date” which changed the EU “from being an economic community that is focused on policy to being a political union, that is, a polity.” This transformation was particularly significant for the community of legal scholars because it overturned old assumptions about the role of law in the process of European integration.
No one has better described the impact of Maastricht on EU legal studies than Deirdre Curtin in her article The Constitutional Structure of the Union: A Europe of Bits and Pieces. Providing a probing critique of the Maastricht Treaty, it is captivating both in the boldness of its argument and the rhetorical prowess at display. Most of all, it is fascinating for the insight it provides in the way in which the community of EU lawyers perceived the Treaty of Maastricht and the changes to the process of integration it heralded. Up to the Maastricht Treaty, legal scholarship had operated on the premise that Europe would integrate through law, but – as Curtin correctly identified – in the aftermath of Maastricht, such a view of integration was no longer tenable.
In the first section, this blog post dissects Curtin’s article and identifies three main assumptions underlying her critique of the Maastricht Treaty. The second section conceptualises A Europe of Bits and Pieces as an example of legalism. The final sections suggest that 30 years after the Maastricht Treaty, EU legal scholarship is still haunted by the spectre of legalism.
2. Reading A Europe of Bits and Pieces
In A Europe of Bits and Pieces, Curtin critiqued the lack of an “overriding and consistent constitutional philosophy” of Maastricht and the way in which the treaty negotiators had “tinkered” with “the constitutional character of a Community based on the rule of law”. The Member States had “behaved like almighty ‘Herren der Verträge’ ignoring, almost whimsically at times, the unique nature of the Community legal system”. The Maastricht treaty thereby signalled the beginning of the end of integration through law, as Curtin herself recognised, “[t]he result of the Maastricht summit is an umbrella Union threatening to lead to constitutional chaos; the potential victims are the cohesiveness and the unity and concomitant power of a legal system painstakingly constructed over the course of some 30 odd years.” Three key assumptions underly her critique, which will be shortly discussed below.
1. The forward march of integration
Curtin’s most visible – and rhetorical – critique of the Maastricht Treaty aimed at the way it put an end to a certain vision of how European integration was to unfold. She justified her critical examination of the Maastricht Treaty because it would be: “vital that those who believe in the overall imperative of the march towards closer and deeper European integration critically examine the many imperfections of the Union ‘Treaty’ (in part amendments of a ‘Constitution’) so as both to ensure that – badly needed – lessons are learnt for the future as to the negotiation process itself”. Maastricht thus broke with the implied progress narrative of EU legal studies, which had functioned on the assumption that the “principle of an ‘ever closer union among the peoples of Europe’ [implies] that integration should only be one way.”
2. Legal unity as a precondition for integration
A second key theme in Curtin’s text is the way she envisaged legal unity as the precondition for European integration. She explicitly analyzed the Union Treaty “from the perspective of unity and coherence” and argued it did not live up to the self-proclaimed ideal of creating a single institutional framework. However, by introducing a pillar structure, the Maastricht Treaty had created a Europe of “bits and piece”. Whereas unity “implied a single institutional framework and uniform applicability and enforcement of Union law”, the Union Treaty merely brought “certain extra-Community activities under the general umbrella of European Union, but not within the law-making powers as such of the Union.” Thus, the Treaty explicitly abandoned the Community method in favor of intergovernmental cooperation. Moreover, Curtin argued that the Member States had “hijacked” the acquis communautaire by adding protocols to the Maastricht Treaty. She was highly critical of the possibility for Member States to ringfence national constitutional provisions, locating these outside the reach of Community law, arguing “[t]he specter of a pandora’s box which has been opened is of course profoundly disintegrative and strikes at the heart of the very uniqueness of Community law.”
3. The autonomy of EU law and the ECJ as a constitutional court
Notwithstanding the ways in which the Maastricht Treaty had undermined the unity and cohesion of the Community legal order and the intentions of the treaty negotiators, Curtin still believed that “the Court of Justice’s general constitutional role will be enhanced if the Union’s treaty enters into force.” She argued that the complexity introduced by the different mechanisms and procedures would lead to a flurry of legal questions the Court would have to answer, which would provide the Court with plenty of opportunities to consolidate its authority. More importantly, she implied that the ECJ could challenge the legal validity of the protocols to uphold the uniform application of Community law. In her own words: the ECJ could take action against “the unlimited discretion of the ‘Herren der Verträge’ to change at whim and arbitrarily certain defining features of the Community legal system.”
3. Bits and Pieces as Legalism
In many ways, Curtin’s analysis of the Maastricht Treaty has proved very accurate. The flaws she pointed out in the institutional structure of the Maastricht Treaty were remedied in the decades following Maastricht. Institutional unity has been largely restored through abandoning the pillar structure and by bringing the policy areas of civil and criminal justice cooperation under the jurisdiction of the ECJ and within the legislative process of the Union. She also proved mostly right (as we will see below) in her assessment that the role of the Court would be enhanced post-Maastricht.
What makes her analysis stand out, however, is the normative overcommitment to legality as a value. Curtin explicitly rejected the idea that the “only valid form of legitimacy in the context of the Communities is that of a democratic system”, listing the rule of law and fundamental rights as guaranteed by the independence of the judiciary as two related, and equally important, forms of legitimacy. Considering the secrecy in the way the intergovernmental conference was conducted, she argued that the guarantee of judicial control by the Court was justified – even essential – to fulfil the characterization of the EC Treaty as “a constitutional charter based on the rule of law” (Les Verts). Note the circularity of this argument: the intervention of the Court was warranted to protect a vision of European integration the ECJ itself had articulated.
This commitment to legality can be defined, following Judith Skhlar, as legalism, which she defined as “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” Skhlar critiqued legal theorists for isolating law from both morality and politics, thereby presenting law as neutral and objective, instead of as a political project. For Skhlar, legalism was a form of ideology, a frame of reference which lawyers and legal theorists bring to their subject and that, inevitably, distorts reality. In a way, legalism points to the deformation professionelle of the legally trained mind: the assumptions and the resulting intellectual distortions that are inherent in the legal discipline. Skhlar tried to show how legalism limits “the analytical perspective of its adherents” because it keeps from sight that law does not always offer “an adequate response to every social need”. In this sense, legalism is an ideology which “is at its worst when it insists upon an uncompromising policy of judicialization.” Moreover, she brought into the open the political commitment of legal theory and questioned the tendency to treat “political preferences as the logical necessities of any valid theory of law.”
A Europe of Bits and Pieces displays all the main tenets of legalism: faith in the role of law, a disdain for politics and a – deliberate – treatment of law in complete isolation from the social and political context it operates in. Most clearly, A Europe of Bits and Pieces displays a deep faith in the progress of law “moving step by step to its predetermined end in a predetermined pattern of progress.” In such a vision, “the only task ahead is that of legal craftsmanship – the formal perfection of the rules”. The utopian dream of a self-standing legal order functioning independently of political actors has deep roots in European legal thinking. In the 19th and early 20th century, many international legal scholars had postulated a stronger international law “would simply be the consequence of the historical process of growing international interdependence between states, economies and individuals.” It is thus not surprising that this way of thinking made its way into EU legal thought, but what is striking is that those legalistic tendencies still abound today.
4. A revival of legalism post-Maastricht?
In the aftermath of the Maastricht Treaty, both the process of integration and EU legal scholarship have undergone significant change. Whereas initially integration through law seemed to be on the wane, in recent years, powerful voices claim “integration through the rule of law is the only way forward.” This is a peculiar development given that after Maastricht, the integration through law dynamic was complemented and superseded with various other methods of integrations, such as an Open Method of Coordination (OMC) and the rise of governance and soft-law, in particular in the context of European Monetary Union (EMU) which led to the increasing marganisaliation of law in the process of integration.
It was in this context, that EU legal studies emphasized the constitutional character of the EU legal order and embraced the idea of a constitution for Europe. Vauchez has argued that the rise of a constitutional discourse can be seen as a “counter-mobilization on the part of EU law and lawyers in a context of rising intellectual and political challenges to their definitional power over the European project.” Only after the failed constitutional treaty, which was rejected by both the French and Dutch electorate, that the constitutional narrative could be seen as “a parenthesis in a longer and deeper process whereby EU law’s intellectual and political leadership over European integration has progressively dismantled.” So much was recognized by Curtin herself, who in later works wrote about the “lost paradise” of European legal integration, moving beyond the tendency of the legal community (and her earlier work):
“Towards viewing the entire process as self-functioning and objective (a so-called ‘myth of legal objectivism’). It has framed European integration as fundamentally apolitical by creating an opposition between a realm of European ‘law’ as a rational force towards the inevitable and a realm of national ‘politics’ as the ‘articulation of the illogical, irrational and ideological.”
Both the turn to governance and constitutionalism came to an end when Europe was hit by the financial crisis, which developed into the Eurozone-crisis. This crisis marked the beginning of a decade-long crisis atmosphere, in which legality was often placed on the backfoot. Crisis measures and emergency politics frequently pushed the boundaries of the EU legal framework – famous examples include the establishment of the European Stability Mechanism as an instrument of private international law or the EU-Turkey migration deal, which the ECJ defined as an instrument outside of the scope of EU law. In these instances, EU law has less functioned as a way to constrain the exercise of political power, but rather as an instrument to exercise power, even at the cost of the degradation of basic legal values. In these circumstances,
Nonetheless, one crisis has seen a revival of legalism in the discourse of EU legal scholarship. The so-called “rule of law crisis” has led to a flurry of commentary that implores the Commission and the ECJ to tackle rule of law issues in several Member States of the EU, notably Poland and Hungary. It is in this literature that we see a return to legalism as an ideology, namely in the belief that legal measures are adequate to tackle rule of law problems. Rather than seeing the rule of law as the precondition for effective rule enforcement, it is now presented as the outcome of the effective enforcement of EU principles and values. However, there are clear limits to the legal enforcement of values and it remains a big question whether it is appropriate for legal institutions and instruments to solve an essentially political problem.
What is clear, however, is that returning to pre-Maastricht paradigm of integration through law’ is unlikely to solve the contemporary problems facing EU law. As Vauchez has adequately put it: “any theoretical bid to re-connect Europe and the law should ‘forget nostalgia’ for EU Law golden years and start from a comprehensive assessment of the political and intellectual zeitgeist.”