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date: 23 July 2024

The Founding Treaties of the European Union and Their Reformfree

The Founding Treaties of the European Union and Their Reformfree

  • Finn LaursenFinn LaursenHonorary Professor, University of Southern Denmark


Today’s European Union (EU) is based on treaties negotiated and ratified by the member states. They form a kind of “constitution” for the Union. The first three treaties, the Treaty of Paris, creating the European Coal and Steel Community (ECSC) in 1951, and the two Treaties of Rome, creating the European Economic Community (EEC) and European Atomic Energy Community (EURATOM) in 1957, were the founding treaties. They were subsequently reformed several times by new treaties, including the Treaty of Maastricht, which created the European Union in 1992. The latest major treaty reform was the Treaty of Lisbon, which entered into force in 2009. Scholarship concerning these treaties has evolved over time. In the early years, it was mostly lawyers writing about the treaties, but soon historians and political scientists also took an interest in these novel constructions in Europe. Interestingly, American political scientists were the first to develop theories of European integration; foremost among these was Ernst Haas, whose 1958 book The Uniting of Europe developed the theory later referred to as neo-functionalism. The sector on integration of coal and steel would have an expansive logic. There would be a process of “spill-over,” which would lead to more integration.

It turned out that integration was less of an automatic process than suggested by Haas and his followers. When integration slowed down in the 1970s, many political scientists lost interest and turned their attention elsewhere. It was only in the 1980s, when the internal market program gave European integration a new momentum that political scientists began studying European integration again from theoretical perspectives. The negotiation and entry into force of the Single European Act (SEA) in the mid-1980s led to many new studies, including by American political scientist Andrew Moravcsik. His study of the SEA included a critique of neo-functionalism that created much debate. Eventually, in an article in the early 1990s, he called his approach “liberal intergovernmentalism.” It took final form in 1998 in the book The Choice for Europe. According to Moravcsik, to understand major historic decisions—including new treaties—we need to focus on national preferences and interstate bargaining.

The study of treaty reforms, from the SEA to the Lisbon Treaty, conducted by political scientists—including the treaties of Maastricht, Amsterdam, and Nice—have often contrasted neo-functionalism and liberal intergovernmentalism. But other approaches and theories were developed, including various institutionalist and social constructivist frameworks. No consensus has emerged, so the scholarly debates continue.


  • World Politics

The European Union (EU) is a unique construction. It has affected the relations between the European countries, which take part as member states, in fundamental ways, and it has become an important international actor, especially in trade and development. To understand what the EU does and how it operates, we need to study the founding treaties, which in many ways form a kind of “constitution” for the Union.1 Although these treaties are treaties under international law, they have created a polity where binding decisions are made (Lindberg & Scheingold, 1970). The treaties have “pooled and delegated” sovereignty to common institutions (Moravcsik, 1998). Important powers have been delegated to the European Commission and European Court of Justice (ECJ), now called the Court of Justice of the European Union (CJEU). Various kinds of majority voting have been accepted in the Council of Ministers, and the European Parliament (EP) has gradually become a co-legislator along with the Council of Ministers. Union law goes beyond international law by having primacy and direct effect.

Naturally, we are interested in explaining why this kind of integration started in Europe and how it has developed over time. In seeking to answer these questions the role of the treaties is important. The decision-making rules are based on the treaties, and the treaties determine the scope of common policies.

The Treaties in Question

Let’s start by getting an overview of the treaties. It started with three treaties, which established three European Communities in the 1950s—first the Paris Treaty, establishing the European Coal and Steel Community (ECSC) in 1951; then the two Treaties of Rome, establishing the European Economic Community (EEC), as well as the European Atomic Energy Community (EAEC or EURATOM) in 1957. Subsequently, the founding treaties were reformed (or amended) on a number of occasions, starting with the so-called Merger Treaty in 1965 and then two budget-related treaties in 1970 and 1975. A slightly bigger reform followed in the Single European Act (SEA) in 1986, the main purpose of which was to create the institutional basis for completing the Common Market, now increasingly referred to as the Internal (or Single) Market. The end of the Cold War saw the negotiation of the Maastricht Treaty, which created the European Union (EU) in 1992. The Union originally had three pillars, the European Community, including provisions on Economic and Monetary Union (EMU), Common Foreign and Security Policy (CFSP), and Justice and Home Affairs (JHA) Cooperation. Subsequently the EU was reformed by the Treaty of Amsterdam in 1997, the Treaty of Nice in 2001, and the Treaty of Lisbon in 2007. The years given are those of signature of the treaties. Entry into force followed after ratification by all member states. In the early years it usually took about a year to enter into force, in recent years usually a couple of years, suggesting that the process of treaty making and ratification has become more controversial over time (Table 1).

Table 1. The Main EU Treaties



In Force


Treaty establishing the European Coal and Steel Community (Treaty of Paris)

April, 18, 1951

July, 24, 1952. It expired on July 23, 2002, after 50 years.

Not published in Official Journal

Treaty establishing the European Economic Community (Treaty of Rome)

April 18, 1951

January 1, 1958

Not published in Official Journal

Treaty establishing the European Atomic Energy Community (A second Treaty of Rome, also known as the EURATOM Treaty)

March 25, 1957

January 1, 1958.

Not published in Official Journal

Treaty establishing a Single Council and a Single Commission of the European Communities (Merger Treaty)

April 8, 1965

July 1, 1967

OJ L 152, 13.07.67

Treaty amending certain budgetary provisions (Treaty of Luxembourg, also known as the First Budget Treaty

April 22, 1970

January 1, 1971

OJ L2, 02.01.71

Treaty amending certain financial provisions (Treaty of Brussels, also known as the Second Budget Treaty)

July 10, 1975

June 1, 1977

OJ L 91, 06.04.78

The Single European Act

February 28, 1986

July 1, 1987

OJ L 169, 29.06.87

Treaty of European Union (Maastricht Treaty)

February 7, 1992

November 1, 1993

OJ L 224, 31.08.92

The Treaty of Amsterdam

October 2.1997

May 1, 1999

OJ C 340, 10.11.97

The Treaty of Nice

February 26, 2001

February 1, 2003

OJ C 80, 10.03.01

The Treaty of Lisbon

December 13, 2007

December 1, 2009

OJ C 306, 17.12.07

Source: Compiled by the author.

Two important treaties failed to be ratified, the Treaty establishing a European Defence Community (EDC) and the Treaty Establishing a Constitution for Europe. The former was denied ratification by the French National Assembly in August 1954, and the latter, also known as the Constitutional Treaty, was rejected by referendums in France and the Netherlands in 2005. To understand treaty making and reform it is also important to study these non-cases. Why were they rejected?

The Changing Contents of the Treaties: The Dependent Variable

The treaties establish institutions and have sections on common policies, some more common than others. Some competences are exclusive, like trade policy; others are shared competences, like environmental policy; and for some policies, the EU can adopt incentive measures while leaving the main competence with the member states. Finally, there are areas under intergovernmental cooperation, now largely limited to CFSP and Common Security and Defence Policy (CSDP). All these aspects have changed over time. The policy scope (or extent of competences) has expanded, and there have been continuous efforts to improve the institutional capacity. To explain these changes we can point to various factors. An important one has been the expanding membership. As the Union was enlarging, from six members in the 1950s, gradually to 28 in 2013, it created pressures on existing institutions, and the new members sometimes had policy preferences that affected the functional scope of the integration process.

Concerning policy scope, it started with coal and steel in the ECSC. The EEC treaty created a common market and common policies for trade, agriculture, competition, and transport. The SEA treaty added environment and “economic and social cohesion.” The biggest expansion took place with the Treaty of Maastricht, which added several new policy chapters, most importantly EMU.

Concerning institutional capacity, the founding treaties in the 1950s introduced a supranational “executive,” an independent European body that had the right of initiative and could make decisions of its own, especially in the area of competition policy. From the very beginning, the ECJ has been an important body, which can make binding judgments. Majority voting in the Council of Ministers was also part of the setup from the beginning. Over time, more and more decisions have moved from unanimity to qualified majority voting (QMV) in the Council. In parallel, the Parliamentary Assembly became the European Parliament (EP) with real legislative powers next to the Council of Ministers. EU treaty studies try to explain these changes over time.

Early Explanations: Neofunctionalism

With the focus on the EU’s constitutive treaties, these treaties are the dependent variable. Efforts to explain the treaties various theories have referred to a number of factors (independent variables). In the following, I shall try to distill the most important points in theories that have been used by students of treaty making and reform, not endeavoring to give a general introduction to integration theory.

Scholarship dealing with treaty reforms has asked questions about agenda setting, the interests of the member states, the actual negotiations, and how to explain the outcomes. Who are the most important actors, and how do they influence outcomes? How are they constrained by rules and norms? What is the role of power in the negotiations? Is some kind of leadership needed to produce agreements? If so, who can provide it? Are agreements efficient? Are they equitable? Can it all be explained by rationalist models, or do we need a more sociological approach, including especially the role of ideas and concerns for the legitimacy of the process and institutions created?

The making of new treaties involves the use of Intergovernmental Conferences (IGCs), where member states negotiate. They have in recent years, usually been concluded by meetings of the European Council, where Heads of State or Government meet. The making and reform of the EU’s “constituent” treaties, therefore is, par excellence, based on intergovernmental negotiations. Peterson (1995) has put them in the category of super-systemic, history-making decisions, and he has suggested that the “best” theories for studying these are liberal intergovernmentalism and neofunctionalism. History-making decisions are different from policy-setting and policy-shaping decisions at the lower systemic and sub-systemic levels. There are integration theories dealing with all three levels, but here the focus will be on the super-systemic level and pertinent theories.

Tracing decisions at the super-systemic level, where the bargaining mode is intergovernmental, one can usefully look at three stages: preference formation, interstate bargaining, and institutional choice (Moravcsik, 1998). Looking at different theories, conceptual frameworks, and approaches, one can therefore compare on those three parts of the process. How do the different theories explain national preferences, power in negotiations, and decisions to create the kind of institutions created in the EC/EU?

Early studies of the founding treaties were often rather descriptive, focusing on the content of the new treaties. There was also an early need for legal analyses. After all, the treaties are legal documents that need interpretation. However, it was up to political scientists to develop more systematic studies based on explicit theories or conceptual frameworks.

A classic political science treatise on the first Community, the ECSC, was written by Ernest Haas (1958). In his book, The Uniting of Europe, he developed the neo-functionalist theory, which became a reference point for later theoretical developments (Pentland, 1973; Rosamond, 2000). A key concept was that of spillover. There is also an important account of the early years of the EEC by another American political scientist, Leon Lindberg. Based on Haas’ neo-functionalism, Lindberg analysed the EEC in The Political Dynamics of European Economic Integration (1963). But disappointingly, neither Haas nor Lindberg studied the actual negotiations of the founding treaties in detail. They focused very much on the role of various interest groups and political parties, but the actual negotiations very largely were “black-boxed.”

Trying to dissect the views of Haas on the three suggested research questions is not easy, but the following quote from the Preface to the first 1958 edition of The Uniting of Europe is useful:

Perhaps the most salient conclusion we can draw from the community-building experience is the fact that major interest groups as well as politicians determine their support of, or opposition to, new central institutions and policies on the basis of a calculation of advantage. The “good Europeans” are not the main creators of the regional community that is growing up; the process of community formation is dominated by nationally constituted groups with specific interests and aims, willing and able to adjust their aspirations by turning to supranational means when this course appears profitable.

(Haas, 1968, p. xxxiv)

National interest groups thus play important roles in preference formation. They are relatively rational, they calculate advantage, and so do politicians. The assumption was a pluralist basis of politics.

In the section, “Negotiating the ECSC Treaty,” Haas mentions Robert Schuman and Jean Monnet as “the true architects of French policy.” Clearly, France was influential, but so was Germany in the actual negotiations. France did not get what it wanted in the area of competition policy (where the difficult issue was deconcentration of industry), nor in labor and wage policy (Haas, 1958, pp. 246–248). According to Haas, economics played a secondary role for France: “Politically, ECSC was to serve simultaneously the aim of a federated Europe and the national needs of French security against German growth” (p. 243). In the area of institutions there was a French proposal at the outset, but it was the Benelux countries that forced the French to change their initial proposal and include the Council of Ministers (p. 249). So the smaller countries, too, had influence on the outcome.

Haas does not discuss the issue of power in the intergovernmental negotiations explicitly. But asking why there was such “a remarkable degree of compromise,” he answered by referring to the “drafting conference,” that is, the Paris IGC headed by Jean Monnet:

Agreement to the principle of supranationalism, was made a precondition for participation. The Franco-German delegations indicated the limits within which they were willing to depart from this principle and adhered to them. The talks were carried out by expert civil servants, not by diplomats or ministers, Instructions from governments were lacking or general in nature. Technical ministers—e.g., economics, transport, foreign trade—were deliberately excluded, and the talks were handled in absolute secrecy from national parliaments, the press and the public. All technical questions were solved at the expert level, with only the political issues of representation and voting rules left to secret sessions of the foreign ministers, meeting rarely and only when agreement among the experts seemed slow in coming. As a result, the hard bargaining was kept to a minimum, while the delegations in a real sense sought to elaborate a common scheme based on accepted first principles.

(Haas, 1958, p. 251)

In line with Mitrany’s functionalism, a central role is attributed to the technical experts (Mitrany, 1966). But the preceding pages in Haas’ analysis do suggest an important role for national interests. Arguably, French influence was affected by the need to include Germany, but this is not stated explicitly by Haas.

What then, about the institutional outcome, including the creation of two supranational bodies, the High Authority and the ECJ? This outcome was a sine qua non not only for France but also for Germany, which had accepted the principle before the Schuman plan was announced. The closest Haas comes to answering this question is indirectly by a quote from Schuman:

The essential thing is the creation of a supranational authority which will be the expression of solidarity among the countries, and which will exercise a part of the powers of each of these countries . . . We persist in thinking that the simple co-ordination of governmental efforts is insufficient. We must create communities of interest on concrete foundations without the preponderance of certain countries, for the advantage of all.

(Haas, 1958, p. 244)

So delegation of sovereignty to the High Authority should avoid the preponderance af certain countries (read Germany). This could be seen as a relatively realist/geopolitical argument. At the same time supranationalism was seen as more efficient than intergovernmentalism.

As mentioned, Haas’ neofunctionalism is especially associated with the concept of spill-over. He develops the concept in the section on “The Expansive Logic of Sector Integration.” Some people, for instance those who want to establish conditions of free trade, “look to supranationalism to achieve their goal, having decided that the national framework is not up to the task. The ‘spill-over’ is real for them” (p. 289). With the exception of Italian steelmakers, “all groups now subject to ECSC jurisdiction favor the extension of the common market principle to new sectors” (p. 293). “ECSC civil servants speaking for national governments have constantly found it necessary to ‘harmonise’ their separate policies in order to make it possible for the integrated sector to function, without necessarily implying any ideological commitment to the European idea” (p. 297). And, referring to the EEC and EURATOM treaties: “One obvious demonstration of a spill-over effect from sector integration is the successful conclusion of two additional treaties seeking to integrate the European economy further” (p. 301). Haas even claimed that there was a direct causal connection between the Paris Treaty and the Treaties of Rome. And he said that “Projecting the spill-over effect observed in the case of ECSC, an acceleration” of the European integration process could “safely be predicted” (p. 311).

Haas’ prediction about spillover did not hold, at least not in the short and medium term. In the mid-1960s, French President Charles de Gaulle succeeded in bringing integration to a halt. Neofunctionalists had to ask what happened. Haas himself tried to answer the question in the preface to the 1968 edition of The Uniting of Europe. He suggested that the initial theory had erred in four respects:


It did not make a distinction between the conditions and expectations at the time of union and the new aspirations and expectations, which developed afterwards.


The original theory had assumed “the end of ideology.”


The theory “also neglected to treat the world setting or the external environment in which the integration took place, except in the most cursory fashion.”


It failed to spell out the massive transformations of European society that occurred comtemporaneously with, but autonomously of, the integration process (Haas, 1968, p. xv).

Inspired by Stanley Hoffmann (1966), Haas now introduced nationalism, national consciousness, and national situations as variables. With de Gaulle, nationalism and anti-functional politics had been reborn in France (pp. xv–xxii). Other neofunctionalists, including Schmitter (1971) and Nye (1971), also suggested revised theories, introducing various new variables. Space, however, does not allow a detailed treatment of these various efforts.

I shall limit the discussion to a brief look at Lindberg and Scheingold’s Europe’s Would-Be Polity (1970), which I personally have found useful, but also somewhat neglected by contemporary scholars. Lindberg and Scheingold moved beyond spillover to include other mechanisms such as bargaining exchanges, leadership, actor socialization, and feedback. Feedback suggested that decisions at time “t” would affect decisions at “t+1.”

Lindberg and Scheingold included various models of incremental change, namely forward-linkage, output failure, equilibrium, and spill back. To this they added what they called systems transformation, which was step-functional and more difficult to explain. It was defined as “An extension to specific or general obligations that are beyond the bounds of the original treaty commitments, either geographically or functionally. It entails a major change in the scope of the Community or in its institutions, that often requires an entirely new constitutive bargaining process among the member states . . .” (Lindberg & Scheingold, 1970, p. 136). This notion of “systems transformations” is akin to Peterson’s history-making decisions.

By 1970, there had been only one case of systems transformation, the very creation of the Communities in the 1950s. Since then, there have been several, not only important treaty reforms, but also enlargements, which have also produced systems transformations. The main additions brought by Europe’s Would-Be Polity were the explicit focus on bargaining processes (with log-rolling and side-payments) and leadership, which can be both national and supranational. The focus, however, was mostly on incremental change, not systems transformation, which had not yet taken place, and which was considered much more difficult to explain than incremental processes.

Among recent theories, historical institutionalism and supranational governance approaches have some familiarities with neofunctionalism. Historical institutionalists “tend to have a view of institutional development that emphasizes path dependency and unintended consequences” (Hall & Taylor, 1996, pp. 941–942). Institutions structure a nation’s response to new challenges. An important article suggesting how historical institutionalism can be used to study European integration was written by Pierson (1996). Pierson put emphasis on the gaps that emerge in the member states’ control of the process. Integration has unintended consequences. But it also has a certain path dependency.

Among supranational governance works, we can mention those by Sandholtz and Stone Sweet (1998) and by Stone Sweet, Sandholtz and Fliegstein (2001). In the introduction to the 3rd edition of Uniting of Europe, Haas comments critically on some of this literature (Haas, 2004).

A special edition of the Journal of European Public Policy in 2005 was entitled “The Disparity of European Integration: Revisiting Neofunctionalism in Honour of Ernst Haas.” The editor, Tanja Börzel (2005), noticed a problem with neofunctionalism’s dependent variable, that scope and level do not co-vary. This included the fact that CFSP had remained intergovernmental. Ben Rosamond suggested that the theoretical legacy of neofunctionalism “is somewhat richer and more prescient than many contemporary discussions allow” (Börzel, 2005, pp. 237–254). Philippe Schmitter (2005) proposed a revised neo-neo version with a list of additional variables. Henry Farrell and Adrienne Héritier (2005) discussed rational choice and social constructivism, including the role of negotiations. Thomas Risse (2005) proposed a pragmatic constructivism. According to Walter Mattli, Haas’ efforts to revise neofunctionalisn in 1967 and 1970 were not successful. Space does not allow me to try to distill the points of particular relevance for our tripartite problematique. Farrell and Héritier probably came closest to dealing with treaty reforms, looking at how informal institutions sometimes become formal institutions via new treaties.

Enter Liberal Intergovernmentalism

The theoretical debate was subdued or non-existent during the 1970s, but started again in the late 1980s as a response to the SEA and plans to complete the internal market. Andrew Moravcsik’s liberal intergovernmentalism (Moravcsik, 1991, 1993, 1998) became an important reference point for many of the more recent studies of treaty reforms. The framework in its 1998 form includes the three phases: national preference formation, interstate bargaining and institutional choice. So, focusing on these three research questions, we get much clearer answers in liberal intergovernmentalism than in neofunctionalism.

The question asked by Moravcsik concerning preferences is whether it is economic or geopolitical interests that dominate when national preferences of member states are formed. The answer, based on major decisions in the European integration process, including the Treaties of Rome, the SEA, and the Maastricht Treaty, was that economic interests are the most important ones. On these he said: “. . . national interests tend to . . . reflect direct, issue-specific consequences. National preferences concerning international trade and monetary policy can therefore be understood as a reflection of economic incentives generated by patterns of international economic interdependence – the core of so-called ‘endogenous’ theories of tariff and exchange-rate policy” (Moravcsik, 1998, p. 6). He does add that it does not mean that geopolitical ideology is relegated to insignificance.

The second stage, interstate bargaining, seeks to explain the efficiency and distributional outcomes of EU negotiations. Here two possible explanations of agreements on substance were contrasted: asymmetrical interdependence or supranational entrepreneurship. Moravcsik arrived at the answer that asymmetrical interdependence has most explanatory power. Given the different preferences, some member states have more at stake than others. They will work harder to influence outcomes and may have to make more concessions. On the other hand, the role of the Community actors, first of all the European Commission, was not considered very important in history-making decisions. So the answer is that asymmetrical interdependence is most important for explaining the intergovernmental bargaining process. Moravcsik refers to so-called Nash bargaining theory: “The Nash bargaining model predicts that those countries that most intensely favour a given agreement will make disproportionate concessions on the margin in order to achieve it . . . The more intensely a government prefers agreement, the greater its incentive to offer concessions and compromises” (Moravcsik, 1998, pp. 62–63).

The third stage, institutional choice, explores the reasons why states choose to delegate or pool decision-making in international institutions. Delegation in the EU case refers to the powers given to the Commission and the ECJ, making these important autonomous institutions. Pooling of sovereignty refers to the application of majority voting in the Council, in practice mostly so-called qualified majority voting (QMV). To explain institutional choice, Moravcsik contrasted three possible explanations: Federalist ideology, centralized technocratic management, or more credible commitment. The answer he gives is that states delegate and pool sovereignty to get more credible commitment. “Choices to pool and delegate sovereignty to international institutions are best explained as efforts by governments to constrain and control one another—in game-theoretical language, by their effort to enhance the credibility of commitments” (Moravcsik, 1998, p. 9). Pooling and delegation is a rational strategy, adopted by the member states to pre-commit governments to future decisions, to encourage future cooperation, and to improve future implementation of agreements (Moravcsik, 1998, p. 73). On this point Moravcsik recognizes the influence of international regime theory, including the works by Keohane and others (Keohane, 1984, 1989; Keohane & Hoffmann, 1991; Keohane & Nye, 1977). On the role of institutions Keohane, a leading neo-liberal institutionalist, said that institutions affect states in three ways:


The flow of information and opportunities to negotiate;


The ability of governments to monitor others’ compliance and to implement their own commitments—hence their ability to make credible commitments in the first place; and


Prevailing expectations about the solidity of international agreements. (Keohane, 1989, p. 2; emphasis added)

Using theories of decision making, negotiations, and international political economy, in general, in an elegant combination has allowed Moravcsik to construct a parsimonious framework for the study of international cooperation including “grand bargains” like EU treaty making and reforms.

Liberal intergovernmentalism, however, has been criticized by several scholars. Some find it too parsimonious. Criticisms include the following: The preference formation part pays too little attention to partisan aspects of domestic politics, the political games between governments and oppositions (Milner, 1997). The negotiation part does not really open the “black box” of negotiations (Beach, 2003). The role of ideas is underestimated (Parsons, 2003). So is the importance of legitimacy (Rittberger, 2005).

After the publication of The Choice for Europe (1998), The Journal of European Public Policy arranged a review section symposium, including contributions by Helen Wallace, James Caporaso, and Fritz Scharpf, with a response from Moravcsik. All three in their critiques talked about case selection. Scharpf was the most outspoken on this:

Given his selection of cases—most of his preferred hypotheses have such a high degree of a priori plausibility that it seems hard to take their competitors quite as seriously as he does. Since only intergovernmental negotiations are being considered, why shouldn’t the preferences of national governments have shaped the outcomes? Since all case studies have issues of economic integration as their focus, why shouldn’t economic concerns have shaped the negotiation positions of governments? And since only decisions requiring unanimous agreement are being analysed, why shouldn’t the outcomes be affected by the relative bargaining powers of the governments involved?

(Wallace, Caporaso, Scharpf, & Moravcsik, 1999, p. 165)

Wallace wanted more about the politics within the member states. Similarly, Caporaso asked “Do domestic institutions matter?” suggesting that “differences in the organization of interest groups (pluralist vs. corporatist), political parties (two party vs. multiparty), and executive-legislative relations (parliamentary vs. presidential) make a difference” (Wallace, et al., 1999, p. 162). Wallace also suggested that ideology or doctrine has played a bigger role than admitted by Moravcsik (Wallace et al., 1999, p. 159).

Moravcsik did not assign much importance to Community institutions in the history-making decisions he studied. Institutionalists certainly assign great importance to EC institutions in day-to-day EC/EU politics (see for instance Hix, 2005; Hix & Høyland, 2011). But there are also institutionalists who argue that EU institutions can play an important role in treaty reforms. Derek Beach studied the role of EU institutions in successive reforms, from the SEA to the Constitutional Treaty (Beach, 2005). Based on negotiation literature, Beach finds two reasons why leadership may be required in international negotiations, including IGCs:


The first bargaining impediment in complex, multi-party negotiations is that parties can have difficulties in finding a mutually acceptable, Pareto-efficient outcome owing to high bargaining costs.


The second bargaining impediment relates to coordination problems that can prevent the parties from agreeing upon an efficient agreement—even if there are low bargaining costs (Beach, 2005, pp. 18–19).

These bargaining problems can be solved if an actor with privileged information steps in and helps the parties get to the Pareto frontier. Leadership can also create a focal point around which agreement can converge (Beach, 2005, pp. 19–20). Bargaining costs are “often so high that most governments are forced to rely upon the expertise of the Council Secretariat and Commission for legal and substantive knowledge, and assistance in brokering key deals” (Beach, 2005, p. 258).

When the original European Communities were created, there were no pre-existing Community institutions that could play the role of EC/EU institutions (although the High Authority of the ECSC played a certain role when the latter two Communities were created). An intergovernmentalist analysis should therefore be the way to analyze the creation of the Communities as distinguished from their later reforms. But doesn’t the initial creation then depend on national leadership of some kind? Can we explain the creation of the ECSC without looking at the role of leadership by national leaders such as Jean Monnet, Robert Schuman, and others? Can we explain the creation of the EEC without the leadership roles played by some Benelux leaders, including especially Paul Henri Spaak from Belgium, but also Johan Willem Beyen from the Netherlands?

Liberal intergovernmentalism finds agreement in the “grand bargains” among states in Europe relatively easy. The states have enough information to find relatively efficient solutions without a political entrepreneur. “Transaction costs of generating information and ideas are low relative to the benefits of interstate cooperation.” National governments have resources to generate information. They can, “regardless of size . . . serve as initiators, mediators, and mobilizers.” So EC negotiations are “likely to be efficient” (Moravcsik, 1998, p. 61).

The argument by Beach is not that Community institutions always have influence in the Intergovernmental Conferences (IGCs) that negotiate the treaties. The research question is: when and under what conditions do Community institutions have influence? His model singles out a number of variables that help explain influence, like resources, negotiation context, and leadership strategies.

Therefore, the role of the EU institutions should not be ignored. Also the role of the Presidency is sometimes important (Dür & Mateo, 2006). In particular, the negotiation of the Constitutional Treaty raises some important new questions (Laursen, 2008). The European Convention (2002–2003), which initiated the reform, was expected to be more a process of deliberation than inter-state bargaining. However, at least during the endgame in the Convention, negotiations played an important part, because the members of the Convention anticipated the reactions of the member states in the IGC, which followed (2003–2004). To what extent did the deliberation frame the questions for the governments? Did the wider participation of members of parliaments (MPs) and members of the European Parliament (MEPs) in the Convention give the draft from the Convention a kind of legitimacy that made it difficult for the member states to reopen the issues during the IGC? There is an important body of literature on the question, “bargaining versus deliberation.” However, space does not allow an extended discussion of this issue (e.g., Panke, 2006; Moravcsik, 2006).

There can be no doubt that preparatory bodies can help set the agenda and sort out difficult technical issues. It is also fair to conclude that the European Convention framed the issues of the IGC 2003–2004 in an important way. Much of the content that had not been accepted by the Nice Treaty IGC in 2000 was now accepted by the member states in the IGC in 2004—only to be rejected by the French and Dutch voters in 2005.

Constructivist and Sociological Institutionalist Contributions

Sociological institutionalists give a very broad definition of institutions including “not just formal rules, procedures or norms, but the symbol systems, cognitive scripts, and moral templates that provide the ‘frames of meaning’ guiding human action.” Institutions provide cognitive templates that affect identities and preferences. Culture is important. Sociological institutionalists are interested in “what confers ‘legitimacy’ or ‘social appropriateness’ on some institutional arrangements but not others” (Hall & Taylor, pp. 947–949).

Whereas liberal intergovernmentalists see the EU member states as unitary rational actors that are in control of the process of integration, historical institutionalists see gaps emerging in the member states’ control and attribute more importance to EU institutions (Pierson, 1996). Sociological institutionalists pay attention to values, ideas, and identities.

A special issue of the Journal of European Public Policy, in 2002, raised a number of theoretical issues inspired by historical and sociological institutionalism. Gerda Falkner argued in the introduction that treaty reform studies should move “beyond formal treaty reform, and . . . transcend economic interests and bargaining power” (Falkner, 2002, p. 1). This was, of course, a critique directed towards Moravcsik’s approach. Reforms also take place through ECJ decisions as well as day-to-day interpretations by the Commission and the governments. Treaty reform studies should be interested in “agency by EU-level actors” and “dynamics such as learning, socialization, and the incremental institutionalization of policy paradigms at the EU level” (Falkner, 2002, p. 2). She suggested that EU treaty reforms could be studied as three-level games, with EU institutions forming a third level. “This approach contextualizes member state power and bargaining to see how both are embedded in a dense web of structuring factors, many of which originate from EU-level institutions and procedures” (Falkner, 2002, p. 4). Sociological institutionalists believe that institutions shape preferences. A rationalist approach is seen as insufficient when it comes to understanding preferences (see also Christiansen & Reh, 2009).

These and other criticisms from historical and sociological institutionalists, arguably, go in different directions. They clearly do not form a coherent theory or model. The closest we get to a clear sociological institutionalist model that can explain important institutional developments in European integration, I argue, is the one developed by Berthold Rittberger in his book, Building of Europe’s Parliament: Democratic Representation Beyond the Nation-State (2005).

Rittberger formulates the following sociological institutionalist hypothesis concerning the empowerment of the European Parliament:

States will create or empower the EP as a response to a perceived lack of resonance between domestically internalized norms of democratic governance and progressive European integration which generates a mismatch between collectively held norms of democratic governance and governance at the EU level.

(Rittberger, 2005, p. 19)

This hypothesis has been developed to explain the increasing importance of the EP in the EU institutional setup. It does not claim to explain other institutional reforms produced by IGCs. But it suggests that normative constraints play a role in IGCs.

Rittberger, has more recently been a co-author with Leufen and Schimmelfennig of a book on differentiated integration (Leuffen, Rittberger, & Schimmelfennig, 2013). They include sociological institutionalism in the group called constructivism and try to use the tripartite structure of research questions used above. In respect to preferences in constructivism, the primacy of ideas is clear enough, and when it comes to interstate negotiations, it is clear enough that constructivists put emphasis on argumentation and deliberation, but when it comes to institutional choice, it becomes a little fuzzier. At least the initial choice of supranational institutions in the ECSC, I would argue, cannot be explained very well by constructivist approaches, apart from the concern about accountability. Efficiency was an important concern.

However, the issue of legitimacy discussed by constructivist is an important one. It can be argued that rationalists have underestimated the issue of procedural or “input” legitimacy. In the early years, European integration was very much based on performance or so-called “output” legitimacy. Good, relevant decisions were supposed to lead to support for the process (Lindberg & Scheingold, 1970). But the question of “input” legitimacy (Scharpf, 1999) has also played a role. How accountable are the decision-makers? How transparent is the process? These questions have been very much on the agenda in recent years. Indeed, they got on the agenda in the 1970s, when the empowerment of the European Parliament started.

The question of legitimacy was quite decisive when the Laeken summit decided, in 2001, to have a Convention prepare yet another treaty reform after the Treaty of Nice did not live up to expectations. However, the ultimate fate of that approach, the non-acceptance of the Constitutional Treaty by voters in France and the Netherlands in 2005, and the very different way the Lisbon Treaty was subsequently negotiated, raises questions concerning legitimacy and our understanding of the forces behind EU treaty reforms (Table 2).

Table 2. Summary of Three Main Theories Concerning the Three Research Questions



Institutional Choice


Material and non-material, a mix of economic and political preferences

Soft bargaining, involving technical experts and pragmatic politicians

Supranational institutions to create solidarity and avoid hegemony

Liberal inter-governmentalism

Predominantly economic (endogenous trade theory); Ideas and geopolitics secondary

Hard power-based bargaining (Nash bargaining); Supranational leadership unimportant

Pooling and delegation of sovereignty to create credible commitments

Constructivism (including sociological institutionalism)

Primacy of ideas (knowledge, values, norms, identity)

Emphasis on argumentation, deliberation, and rhetorical action to facilitate consensus

Focus on community-building (socialization); Ideas about legitimacy will empower certain institutions (especially the EP)

Note: EP – European Parliament.

Source: Compiled by the author.

So What Do We Know?

Some of the theoretical debates have concerned the role of the member states vs. other actors. The question of leadership is another issue that divides scholars engaged in studying treaty making. So does the question of material interests (including geopolitics) vs. ideational factors. The following is my take on these issues, based on studies that have actually focused on treaty making and reforms

The Member States: Constrained Masters of the Treaties

The member states are, legally speaking, the masters of the treaties, and this is also very much a reality. They dominate the IGCs, which always conclude the treaty-making process. They have also tended, at least until the Convention prepared the Constitutional Treaty, to dominate preparatory bodies. The Treaty of Paris was prepared by the French government, Jean Monnet and his associates in particular (Gillingham, 1991, p. 239). The Treaties of Rome were prepared by the Spaak Committee (July 1955–May 1956). The SEA was prepared by the Dooge Committee (July 1984–March 1985) (De Ruyt, 1987, pp. 51–59). The Economic and Monetary Union part of the Maastricht Treaty, however, was prepared by the Delors Committee (Dyson & Featherstone, 1999; Laursen & Vanhoonacker, 1992). The Amsterdam Treaty was prepared by a so-called Reflection Group with representatives from the governments (June 1995–December 1995) (Laursen, 2002, pp. 4–5). Whatever preparation the Treaty of Nice had was carried out mainly by the Finnish Presidency in the second part of 1999 (Laursen, 2006, p. 3). So we find heavy national input in treaty reform preparations.

It can further be argued that rational models, like liberal intergovernmentalism, go a long way in explaining the behavior of member states in IGCs. They have their preferences and interests, which they pursue in hard bargaining processes. These interests depend on demands from domestic constituents including interest groups and political parties. The domestic politics part is somewhat underspecified in liberal intergovernmentalism, though. It matters what kind of government the member state has: How strong is it vis-á-vis the national parliament; how united is it; how strong is the opposition; how controversial is European integration in the member state in question? Answering the latter question may require deep historical analyses. History may explain national identity but also party-political games and conflicts. An outsider not familiar with Danish political history will not be able to explain Denmark’s contributions to flexibility or “differentiated integration,” which has become an important part of the integration process (Kölliker, 2006; Leuffen et al., 2013; Stubb, 2002). Most EU governments, caught in a two-level game, normally face important domestic constraints. Understanding these domestic constraints is an important part of doing research on EU treaty reforms.

During the process of negotiations there are important bargaining exchanges. In the end, all member states must find the proposed agreement better than, or at least not worse than, the existing treaty. The bargaining issues, according to game theory, are of two main kinds, issues of efficiency (reaching the Pareto frontier) and distribution (where you end up on the Pareto frontier). Pareto-efficient solutions are not always easy to find. Leadership can assist member states in overcoming collective action problems (Beach, 2005). The distinction is between Prisoners’ dilemma games and Battle of the Sexes, an important distinction not necessarily fully understood or considered by constructivist writers (on game theory, see for instance Stein, 1982). The former was applied by Keohane (1984). The importance of the latter has been emphasized by Krasner (1991). But we need to combine them to understand integration (Beach, 2005; Mattli, 1999).

Scholars have been interested in influence on interstate negotiations. Do the bigger member states have more influence than smaller member states? Is the intensity of preferences an important factor, as suggested by Moravcsik’s asymmetrical interdependence concept? Can small powers also be influential? How does the need for a referendum to ratify an agreement affect the influence of a member state? According to Schelling, binding your hands can increase your influence (Putnam, 1988; Schelling, 1960). This, arguably, has given smaller member states that regularly require a referendum to ratify a new treaty, like Ireland and Denmark, greater influence than one might otherwise expect.

Importance of Leadership Contributions

Another point: Leadership can be required to reach agreements in complex international negotiations. Let me mention some examples of such leadership in EC/EU IGCs.

The first of the original Community treaties, the Treaty of Paris, creating the ECSC, was negotiated by the six original member states in Paris from June 20, 1950 to April 18, 1951. Jean Monnet, who was the intellect behind the Schuman Plan of May 5, 1950, chaired the conference. Two members of the French delegations, Etienne Hirsch and Pierre Uri, had prepared a text, which became the basis of the negotiations. Basically, the treaty emerged through the negotiations as representatives from the other future member states suggested changes and additions. It seems fair to talk about French leadership. Foreign Minister Robert Schuman appeared personally during the conference and delivered the required parliamentary majority for ratification at the end of the process. Monnet’s ideas and tenacity played an important role (Haas, 1958, pp. 240–251; Parsons, 2003, pp. 50–66).

After the plans for a European Defence Community failed to be ratified by the French National Assembly, in 1954, European integration was re-launched by a meeting of foreign ministers in Messina, in 1955. The pro-Community Belgian politician Paul Henri Spaak was asked to chair a committee that would outline plans for a common market and an atomic energy community, from July 1955 to spring 1956. “Spaak was well suited by temperament and conviction to draft the necessary report. His enthusiasm for integration had already won him the nickname ‘Mr. Europe’” (Dinan, 2005, p. 32).

An intergovernmental conference started in Brussels on June 26, 1956. It was chaired by foreign minister Spaak (Küsters, 1988). The two Treaties of Rome, establishing the EEC and the EURATOM, were signed on March 25, 1967. Parsons argues that pro-community French leadership again was decisive (Parsons, 2003, p. 116). But it would be fair to mention Benelux leadership, too. It was a Dutch politician, Johan Willem Beyen, who first suggested a plan for a customs union in 1953, and the Dutch kept pressing for a common market as distinguished from more limited sector integration. It was a Beyen-Spaak agreement that led to a “Memorandum from the Benelux Countries to the six ECSC Countries” which defined the notion of an Economic Community in May 1955 and which formed the basis of the Messina decisions (Monnet, 1978, p. 403). The IGC bilateral meetings between German Chancellor Konrad Adenauer and French Prime Minister Guy Mollet, in November 1956 and February 1957, also contributed to sorting out some of the disagreements (Moravcsik, 1998, p. 144). But writing about the Brussels IGC, French historian Pierre Gerbet says, “L’arbitrage politiques était exercé par le président Spaak” (Gerbet, 1983, p. 213). So the role of the president or the chair of IGC can be quite important.

The SEA was negotiated in an IGC during the Luxembourg Presidency from July to December 1985. The Commission had taken part in the preparatory work in the Dooge Committee, which prepared this reform. When the IGC started, the Commission continued to take part in the negotiations, even if this was not foreseen in article 236 of the EEC Treaty. The Commission’s participation was accepted by the member states, which had gotten used to its role in day-to-day business. The European Parliament, on the other hand was not allowed to take part. The Draft Treaty on European Union, adopted by the European Parliament in 1984 under the leadership of federalist member of the European Parliament (MEP) Altiero Spinelli, implied much “more Europe” than the member states were willing to contemplate at the time. So the EP was only to be consulted, and that is largely the way it has been since then in connection with treaty reforms.

In the end, the Commission played an important role in the SEA IGC, the first quasi-constitutional IGC (Budden, 2002). More than half the proposals considered during the IGC had been put forward by the Commission (Corbett, 1987). It is probably fair to say that most of the SEA was originally drafted by the Commission. Even if the EP was not directly involved in the IGC, it should be recognized that the EP contributed by putting reform on the agenda because of Spinelli’s leadership in the EP.

A number of treaty reforms followed the SEA. First, it was the Maastricht Treaty that established the European Union, followed by reforms in the Amsterdam and Nice Treaties, and finally the Lisbon Treaty (Laursen, 2002, 2006, 2008, 2011, 2012; Laursen & Vanhoonacker, 1992, 1994). The IGCs negotiating these reforms were organized on similar lines, member states negotiating, chaired by the Presidency but assisted both by the Commission and the Council secretariat. The EP was consulted. Many scholars have argued that the Commission played a less important role in the reforms that followed the SEA (e.g., Beach, 2005). Certainly the Presidencies played important roles in producing negotiating drafts and brokering agreements, occasionally playing a controversial role, such as the Dutch in the Maastricht negotiations in the second part of 1991 (Wester, 1992), and the French in the Nice negotiations in the second part of 2000 (Schout & Vanhoonacker, 2006). In the IGC that concluded the negotiations of the Constitutional Treaty in 2004, the Italian Presidency had less success than the Irish Presidency, which followed (Dür & Mateo, 2006). The German Presidency during the first part of 2007 played a very important role in getting an agreement on a detailed mandate to the IGC that finalized the Lisbon Treaty (Laursen, 2011).

By definition, intergovernmental conferences have member states as the most important actors. As suggested by the cases mentioned, the Presidency plays an important role. Some Presidencies rely a lot on the Council secretariat, others less. The Council secretariat has a useful institutional memory. The Presidency can arrange “confessionals” with member states to try to find the bottom lines and thus locate possible agreements. Occasionally, the Commission can also contribute to the process (for a sophisticated discussion, see Beach, 2005).

Ideational and Normative Factors

According to liberal intergovernmentalism demands from societal groups, mostly economic groups have been decisive in the process of European integration. It has been argued that domestic politics matters. Governments want to stay in power. Politicians want to be elected and re-elected. So politicians have to listen to their constituents. But more than economics enter when citizens and politicians decide whether European integration is a good thing or a bad thing. Political interests and attitudes are often rationalized in the form of ideologies. Ideas concerning the future of Europe vary, from pro-integration federalists to anti-integration nationalists. If economic interests are clear and strong they may triumph. If not, ideational factors may become more important. In the end, all actors have certain ideas of what is good and legitimate.

In liberal democracies, people share certain ideas about legitimate governance, including free elections, protection of human rights, etc. These ideas are also projected onto the European stage. They have played a role in the making and changing of EC/EU level institutions from the very beginning. Since the very first IGC in Paris, in 1950–1951, ideas of efficiency and legitimacy have confronted each other. The institutional system invented then included a relatively autonomous executive (High Authority, later Commission), a Council to represent the member state governments, a parliamentary assembly (later known as the European Parliament) to represent the citizens, and a judiciary (the ECJ), thus imitating the divisions of powers found in the member states and other liberal democracies. Creating a strong executive and court as well as applying QMV in the Council arguably has contributed to creating “credible commitments,” but these considerations cannot explain the continuous strengthening of the European Parliament. To understand that part of the process you need to look at normative factors relating to procedural legitimacy (Rittberger, 2005; Rittberger & Schimmelfennig, 2007).

Concluding Remarks and Questions for Future Research

The number of treaty-making and reform studies using political science theories in a systematic way is rather limited. The best overall effort to produce theory-based qualitative research, arguably, remains Moravcsik’s The Choice for Europe (1998). Among rational choice institutionalists, the contribution by Derek Beach must be singled out as very important, too (Beach, 2005). Historical and sociological institutionalists have also contributed important studies, including Christiansen and Reh (2009).

Rittberger’s study of the empowerment of the EP deserves special mention (2005). It combines rationality with the use of rhetoric. When pooling and delegation create concerns about procedural legitimacy, domestic political elites will respond to alleviate the legitimacy deficit. Empowering the EP is a way to deal with that deficit. In the IGC, member states will face normative constraints.

Finally, Parsons’ A Certain Idea of Europe (2003) should be singled out as an important book, looking at the role of ideas and coalitional politics in France.

At the theoretical level, the debate between rationalists and social constructivists is a challenge. Do we have to choose one or the other position? It can be argued that a full understanding of European integration requires a combination of the two. This possibility is discussed in an interesting fashion by Schimmelfennig (2003) in relation to the EU’s Eastern enlargements. In a more recent article, Rittberger and Schimmelfennig (2007) came up with the concept of “normative spillover”:

In a nutshell, we argue that functional supranational integration has regularly undermined existing democratic and human rights institutions at the national level and thereby created a democratic legitimacy deficit of European integration. This legitimacy deficit triggered arguments, in which interested or committed actors drew on the shared liberal-democratic community norms in order to create normative pressure in favour of the constitutionalization of the EU. We propose to term this process “normative spillover.”

(Rittberger & Schimmelfennig, 2007, p. 216)

Shared norms of a community can be used strategically, thus in a rational fashion, to shame recalcitrant actors to move. Arguably, this has been an important ingredient of interstate bargaining that has been ignored or downplayed by liberal intergovernmentalism.

Still, it can be argued that liberal intergovernmentalism can go a long way towards explaining central aspects of EU treaty reforms, especially the reforms from Rome to Maastricht, where economic issues were important, including the internal market in the SEA and EMU in the Maastricht Treaty. However, a rationalist approach cannot explain the empowerment of the EP. Further, since the end of the Cold War, the process has become more politicized, and accountability issues have come even more to the fore. The days of the so-called “permissive consensus” were over (Laursen, 1994). Issues of legitimacy became more important.

Another challenge for research is the fact that it is impossible to cover the preferences of all actors in detail. Some selection is necessary. Moravcsik chose to study the three big actors, France, Germany, and the United Kingdom. But this will sometimes be insufficient. Italy and Spain have also played important roles, and Poland has been a key actor in connection with the Constitutional and Lisbon Treaties. Even smaller actors have played important roles, including the Benelux countries, Denmark, and Ireland, the latter two partly because of the regular use of referendums. Seen from a two-level perspective (Milner, 1997; Putnam, 1988), it can be argued that the use of referendums to ratify a new treaty will strengthen the referendum-using state in the negotiations. The German Presidency listened quite a lot to the Danish government in 2007 in order to avoid a referendum in Denmark (Laursen, 2011).

The debacle of the Constitutional Treaty raises the question, what went wrong with the Constitutional Treaty? Has a constitutional equilibrium been reached, as argued by Moravcsik (2005, 2006, 2007). Is he right, when he argues that the premises behind the Constitutional Treaty—basically that more participation and deliberation would create greater common identity, institutional trust, and political legitimacy—were wrong? And, given the subsequent “no” vote to the Lisbon Treaty in Ireland, in June 2008, how does that vote fit in with our understanding of the process of EU treaty reform?

The financial crisis of 2008 and subsequent response to the Eurozone crisis suggests that a constitutional equilibrium has not been reached. A small treaty reform was used to create a permanent bailout fund, and there has been much talk of fiscal union, banking union, etc. But the debacle of the Constitutional Treaty has also created treaty reform fatigue. However, the best prediction is that there will be more treaty reforms in the future.

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  • 1. The study of treaty reforms has been a central part of the author’s academic work since the negotiation of the Maastricht Treaty; he has edited or co-edited books about each of the new treaties since Maastricht. He also edited a book, Designing the European Union (Palgrave, 2012), which had chapters by leading scholars on each of the main treaties. This article therefore relies heavily on conclusions based on those studies.