By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called ‘the Union’. This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen.
The phrase ‘ever closer union’ is repeated from the original Treaty of Rome, though it is worth noting that in the Rome Treaty it was in the Preamble. Maastricht elevated it for the first time into the substantive treaty text as part of the Treaty’s objectives clauses. But, in any case, the concept of a ‘Union’ is clearly a major extension of that — ‘a new stage’, in fact. Moreover, Articlefsets out clearly the objectives of this Union, including ‘the establishment of economic and monetary union, ultimately including a single currency’, ‘to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might in time lead to a common defence’, and the ‘introduction of a citizenship of the Union’. Understandably, therefore, Chancellor Kohl has commented:
In Maastricht we laid the foundation-stone for the completion of the European Union. The European Union Treaty introduces a new and decisive stage in the process of European union which within a few years will lead to the creation of what the founder fathers of modern Europe dreamed of following the last war: the United States of Europe.[69]
On the other hand, the phrase ‘in which decisions are taken as closely as possible to the citizen’, combined with the removal at British insistence of the phrase ‘federal goal’ from the earlier draft Treaty, gave the British Government a pretext for claiming that Maastricht actually devolved power from the centre to individual governments responsible to national parliaments. The flurry of interest in ‘subsidiarity’ similarly stemmed from the British Government’s desire to give the impression that Maastricht was a liberalizing rather than centralizing measure. Indeed, a new Article 3b was inserted by Maastricht into the Treaty of Rome:
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar 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.
This wording has rightly been described by a former President of the European Court of Justice as ‘gobbledygook’. The past behaviour of the European Commission gives no reason to believe that it would constrain that body’s activities. Initially, the Commission itself determines whether the matter is something to be devolved under the subsidiarity rule. It is extremely unlikely that the rule would be enforceable in the European Court of Justice to any practical extent. In any case, it would not apply to those areas which do fall within the Community’s ‘exclusive competence’, thus ruling out its application to wide areas of Community law such as most of the internal market measures and many social provisions. Anyone who reads the Treaty closely and intelligently will see that Chancellor Kohl’s interpretation of it is a great deal more accurate than the British Government’s. And that, perhaps, is why it was initially made so difficult to gain access to the full text of Maastricht and why generalities and slogans were the preferred means of its exposition.
In fact, the attempt to portray Maastricht as the opposite of what it was met with only limited success. Anti-federalist Conservative MPs supported it only insofar as they felt it necessary to support the Prime Minister. The real argument therefore came to centre on the ‘opt-outs’ which Britain obtained. In practical terms, the best that could be said for Maastricht was that not all of it applied to us. Unfortunately, it is not at all clear how effective these exemptions will prove to be either in law or in practice.
It will be recalled that when John Major and I had been discussing the tactics required to resist pressure towards economic and monetary union in the summer of 1990, I had been quite prepared for the other eleven Governments to negotiate a separate treaty for Economic and Monetary Union (EMU). Under this, Germany and France would finish up paying all the regional subventions which the poorer countries would insist upon if they were going to lose their ability to compete on the basis of a currency that reflected their economic performance. I also thought that the Germans’ anxiety about the weakening of their anti-inflation policies, entailed by moves towards a single currency and away from the Deutschmark, could be exploited in negotiations. Above all, we must be prepared to use our veto — and be known to be prepared — if we were to bring our Community partners up against the harsh realities which would make them think twice.[70] Precisely how matters would have gone if this strategy had been pursued is, of course, now impossible to say. But there was no practical reason to worry about our being ‘isolated’, despite the hysterical incantations to that effect. We could have continued benefiting from the Single Market under the existing Treaty arrangements — while still having to tolerate the CAP and the incursions of the European Court. The only Götterdämmerung was in the frenzied imaginations of panic-stricken Tory MPs.
The problem with John Major’s alternative approach was that although it initially won plaudits, it left the fundamental problems unresolved. Under it, we would effectively abandon our attempts to win support for our alternative vision of the Community, going along with a new European framework which did not suit us, while relying on special exemptions which ultimately depended on the goodwill and fair dealing of people and institutions whose purposes were radically different from ours. Arguably, the changed approach actually made our position worse by accepting important points of principle about the Union’s future direction, for example by acceptance of the general objectives set out in Articles A and B, which will make it more difficult for Britain to argue for its own conception of Europe in the future.
As it turned out, Britain succeeded in negotiating two special ‘opt-outs’. The first exempted Britain from the regulations on workplace and trade union rights contained in the ‘Social Chapter’, and the second allowed us to opt out of the third and final stage of monetary union. The Government was absolutely right to resist the social provisions, which would have increased business costs, reduced flexibility and competitiveness and destroyed jobs. But this exemption relates only to new provisions and not to other directives on social policy under the Treaty of Rome amended by the Single European Act. These still offer a means of imposing the high social costs of Germany and France on Britain by the back door. A particularly important example, which has indeed become a test case, is the June 1993 ‘working time’ directive, which laid down a maximum forty-eight-hour week. This was introduced as a ‘health and safety’ measure under Article 118a to which qualified majority voting applies. The Government has mounted a legal challenge in the European Court. But the directives — whether on maternity leave or part-time employment — continue to flow. All of these measures would have one main effect — and arguably also have one main objective — namely, reducing the flexibility and competitiveness of British industry, to bring us into line with Europe.
Moreover, there is no doubt that the French, in particular, will do everything in their power to prevent transfers of investment and jobs to Britain because of our lower social costs. This was illustrated by the outraged French reaction to the decision by Hoover-Europe to transfer production of vacuum cleaners from Dijon to Cambuslang near Glasgow because, as the President of Hoover-Europe explained, in Scotland total remuneration costs were 37 per cent lower than in France. A large part of that difference reflects the cost of social benefits required by French law. What Britain regards as a desirable policy of keeping the burden of regulations and costs on business down the French denounce as ‘social dumping’. In these circumstances, the pressure on Britain to accept regulations which will damage business will continue and intensify.