Notwithstanding a blatant lack of tangible content thus, the concept of common values and principles of the EU has become more significant throughout the treaty reforms of the recent years. The common values of the EU have, bit by bit, moved from the systematic margins of the treaties toward the centre of the legal framework. While in the beginning, they were very much an added beautification for “Lady Europe”, who actually bore other, perhaps more economic, but certainly more pragmatic interests in her heart, it appears from the direction of treaty reform at the level of an European Convention and the emergence of a true ‘European Constitution’ that these principles have transformed to form the backbone of the European body, from which all other components now transpire. The latest change in terminology illustrates this process, where the ‘common values’ are merged with the ‘constitutional’ foundations of the EU to become ‘constitutional values’.
Apparently, the proclaimed commonality of the values may be merely superficial and does not allow for the pining-down of a clear-cut content. When nonetheless each new treaty introduced or identified further commonalities, that was owing to the need to invigorate the integration and enlargement processes. In parallel however, the ‘common principles’ gained practical relevance. The prominent example of the potential power of these principles to limit the range of sovereign action of member states was the subjection of Austria to a scrutiny of its adherence to the Union’s ‘common values’. Member states can hence be expected to remain cautious about the concept and will latently seek ways to side-step some of its pieces.
Exit from Commonalities: L’Europe se déshabille
Although these little by little established principles were labelled ‘common’ to the member states and placed at the very foundations of the Union, it became necessary from the point of view of the Union to secure and-where needs be-to enforce them by way of sanctioning mechanisms.
Correspondingly at the level of the member states, the proliferation of actual or proclaimed commonalities in the treaties prompted a dive to secure opt-outs from those policies and principles. In this regard, the integration process, which has a momentum of its own, is to be separated from the procedures and devices, such as opt-outs, available to players within that process. The term ‘integration’ as used here depicts the process of harmonization of the different national legal orders with a view to establishing a uniform European legal system. It should be noted at this stage that most of the opt-out mechanisms concern political integration, while economic integration is mostly not questioned. Opt-outs from Economic and Monetary Union and the full ‘negotiated withdrawal’ from the Union are exceptions in this regard. Despite these examples, it is certainly true that most concerns of member states over a loss of sovereignty concern non-economic areas, such as, prominently, foreign policy, home affairs, social policy or the like. It is in these areas that integration either does not advance at all, or that advances are agreed to at the cost of opt-outs. In a defensive move vis-à-vis harmonization efforts, member states seek to preserve their, authentic or alleged, national, regional, infra-national and other identities. The progressive pushes for commonality in the recent treaty amendments prompted the parallel introduction of exit options from those commonalities for the member states.
The description of the exit/voice-loyalty-mechanism initially stems from economic theory, but it has since trespassed disciplinary boundaries. The model proved a source of fertile insights for a large variety of organizations, from the family, to political parties, to the collapse of the political system of East Germany, and, finally, to the mode of cooperation of states and institutions in the European Union. The theory seeks to explain the inclination of actors constrained within a given system or bound by a given set of rules to adjust the rules according to their needs and preferences rather than to walk out on the system altogether. Where voice-loyalty is the choice of actors to influence an existing system, exit is the choice to abandon the existing system. The supposition is that the likelihood of actors to exit rather than to adjust the system is predisposed by the cost of their exit. In other words, the more exit options are available to actors and the easier these can be implemented, the more likely they are to opt-out of a constraining system rather than to seek to change it.
At Maastricht already, due to resistance of the United Kingdom, the Social Policy Chapter could only be introduced to the first pillar at the expense of its selective applicability. That regime was only ended in 1997 by the Amsterdam Treaty when the United Kingdom abandoned its opt-out and agreed to an incorporation of these norms into the EC Treaty. At Amsterdam also, and more importantly, the foundation for flexible integration along structured, pre-defined legal provisions of primary law was laid in the form of the enhanced (then: closer) cooperation mechanism. In the subsequent Treaty of Nice, both the flexibility and the voting rights suspension-mechanisms were broadened and refined. Finally, in the Constitutional Treaty, member states were granted the fiercely debated right to voluntary withdrawal from the Union. An even more controversial provision obliging member states to mandatory withdrawal in case of failure to ratify amendments was, although finally not included in that text, on the constitutional agenda for some time.
All of the depicted mechanisms introduced mirroring the thickening of the texture of “common values”, allow actors to exit the political and legal discourse and to resort to proceeding non-consensually, albeit at varying degrees of intensity. It is for this reason also that these mechanisms in their very essence do not constitute a form of loyalty-enhancing ‘voice’. The introductions of, for example, enhanced cooperation or the right to voluntary withdrawal do not foster integration efforts by giving member states additional bargaining power in the modelling of those efforts and thus, as such, do not enhance their willingness to cooperate with a view to furthering integration. Much rather, these provisions are pure ‘loopholes’ for potential exit. Nonetheless, the parallelism of integration and disintegration processes in the EU does not suggest a clear separation of exit and voice mechanisms. As will be shown in more detail below for the example of enhanced cooperation, the threat of exit can also add to a player’s bargaining power. Still, the fact that an exit mechanism need not in all cases actually be used for exit but can be employed as a means of voice does not alter its qualification as essentially an opt-out.
What should finally be stressed to round-up this introduction to disintegration mechanisms is the absolute parallelism in the movements to introduce and expand the ‘common values’ groundwork on the one hand, and to secure opt-outs on the other. At the occasion of each treaty, both blocks were adapted and the expansion of one concept did not occur without the parallel expansion of the other. This phenomenon shall now be looked into in detail for three of the aforementioned mechanisms. They are illustrated and assessed as examples of the disintegrationist momentum that contrasts the progressive integration steps as described in detail earlier above.