Editorial

Citation

Barnes, P.M. (2006), "Editorial", Managerial Law, Vol. 48 No. 4. https://doi.org/10.1108/ml.2006.01048daa.001

Editorial

The birth of an ideal

On May 1, 2004, ten new Member States acceded to the European Union (EU) which brought the membership of the European Union to 25 Member States with a total population of 457 million people. This phase of enlargement is on-going and is not due to be completed until 2007/8 with the accession of two further states – Bulgaria and Romania. Negotiations were begun with the governments of Croatia and Turkey in October 2005, with the intention that these two states should also become full member states of the European Union within a period of 10-15 years. At the end of 2005, a favourable Opinion was presented by the European Commission as a preliminary to the awarding of candidate status to the state of Macedonia. There was also an acknowledgement of the ambitions of other states of the Western Balkans to accede to the EU in the future. The result being that within the next 25 years the EU could include 30 plus Member States.

The origins of the European Union lie in the middle of the 20th century, in the immediate aftermath of the Second World War when there was a tremendous desire in Europe for peace. The search then began for ways in which that peace in Europe could be created, ensured and preserved. In 1946 the British wartime leader, Winston Churchill, delivered a speech which captured the feelings of many Europeans of the time. His speech is today called the "Tragedy of Europe" speech. Churchill began by saying that the tragedy of Europe was that for many generations in the past the two great European countries of France and Germany had been at war with one another. What had increased the tragedy was that twice in the 20th century this conflict had spilt over and drawn in the whole of Europe and indeed the whole world. Churchill proposed that the way forward for the future was the creation of a kind of US of Europe which would have at its core a spiritually strong France and a spiritually strong Germany in an equal partnership. Such a union would have the support of the UK and the US.

It was the French civil servant Jean Monnet who as the Commissioner for Planning in France at the time was able to put flesh onto the ideas of the politicians and statesmen like Churchill. In 1950, he outlined his ideas to the French foreign minister Robert Schuman. Monnet proposed that, in order to prevent what he felt was an almost inevitable third world war, the only way of escape was concrete action on a limited but decisive point. The point of co-operation which he identified for action was the creation of a common market to trade in coal and steel products among the six states of France, Germany, Italy, Belgium, the Netherlands and Luxemburg. His ideas were supported by Schuman and the plan became the foundation of the European Coal and Steel Community (ECSC) in 1951.

At the heart of Monnet's plan lay the concept of supranationality and the powers which would be ceded to the High Authority of the ECSC which would enable it to work on behalf of the whole Community. The Dutch government proposed the inclusion in the institutional framework of a Council of Ministers to represent the interests of the Member States. A third institution the General Assembly of representatives of the citizens was added to complete a framework of common institutions within which to achieve common management of common problems. From the beginning Monnet placed an emphasis on the linked features of equality, the institutional structure, the importance of law to give the actions taken by the Community legitimacy and above all the objective of the promotion of peace and stability. Monnet was thus … the driving force "… the philosopher and generally accepted leader of the movement for creating unity in Europe"[1].

The model of co-operation and collaboration between the countries so that they could successfully trade in coal and steel products which Monnet had devised was used as the model for the Treaties which created the European Economic Community (EEC) and the European Atomic Energy Agency (EAEC) (EURATOM) in 1957. The EURATOM Treaty was concerned with peaceful use of the nuclear technologies to produce much needed electricity to aid the urgent task of economic re-generation in Europe. The EEC of course was concerned with many more areas of co-operation than either the ECSC or the EAEC but the framework to make things work for all the Communities continued to be that of Monnet's Plan. Thus the European Union was born, based on a legal framework to sustain peace and democratic developments in Europe which would benefit all the peoples of its signatory Member States.

Monnet's achievement has been recognised and celebrated in many ways both within Europe and globally. As early as 1963, the US president John F. Kennedy commented that Monnet had achieved more to unite Europe through his practical planning than all the politicians and statesmen of his time. In 1976, he was honoured by the Heads of Government of the EU's then Member States as the only "Honorary Citizen of Europe". Monnet died in 1979 but his name continues to be used for various initiatives which promote integration in his honour. Above all the greatest testament to his memory is the legacy of peace and stability which has characterised and made the European Union so attractive to Europeans and European States since the 1950s.

The values of liberty, democracy, respect for human rights and fundamental freedoms and respect for the rule of law were considered to be pre-eminent characteristics of the states of Northern and Western European which came together to form the Communities of the 1950s. These values were enshrined in the founding Treaties of the European Union but now are being more widely disseminated as models of stability and growth for the whole of Europe. Yet for many people living within the European Union there appears to be a paradox. The EU has sometimes been castigated for a lack of democracy. Some commentators have gone so far as to declare that if the European Union was a state and it applied for EU membership it would not meet its own conditions of respect for democracy and the rule of law! Is this allegation correct?

In the articles included in this special edition, the writers have analysed various aspects of the operation of democracy and law in Europe in order to present some insights into why the EU continues to attract new member states. Why does the EU appear to provide a model for other states if there is a lack of respect of its own basic values, goals and ambitions? Why is the European Union able to continue to function as a union of 25 Member States, approaching its fiftieth anniversary, in a century which is unfolding with a very different geo-political framework in Europe from that existing in 1957. Answers to this conundrum are very difficult to find. Indeed the writers of the articles have at times posed more questions than solutions in their discussion and analysis.

The gravitational pull of the European Union

The ending of the Cold War in 1989 brought many political, legal, economic and social changes to Europe and its numerous states. Among the most dramatic of these changes was the opportunity for states which had been part of the Soviet Empire to apply for membership of the European Union. On May 1 2004 eight, formerly Soviet dominated States (the Czech Republic, Hungary, Poland, Slovakia, Slovenia, Estonia, Latvia, Lithuania), along with Malta and Cyprus became part of the European Union (EU). In order to join the EU conditions of entry were identified with which these new Member States were required to comply. These conditions did not just include the economic conditions of a functioning market economy, but they also included the political conditions of liberal democracy with respect for human rights and the rule of law.

As a result of these conditions for membership of the EU, the governments of all the new member states have had to introduce wide-ranging changes to all aspects of their national policies. The lives of all the people living in the new Member States have been dramatically altered. In the first of the articles in this volume, co-authored by Professor Ian Barnes and Claire Randerson from the University of Lincoln, questions have been raised about the effectiveness of the conditions given by the EU to the New Member States. In their article, they begin by analyzing the process of change which has taken place in these new Member States in an extremely short period of time. They question the extent to which the changes which have been introduced are merely the result of a technical exercise which the national governments were required to conduct or have the entry conditions brought about real and meaningful changes in the economy and democratic practices of states such as Poland and Hungary.

The process of enlargement of the EU is continuing with other states such as Bulgaria, Romania, Croatia, Macedonia and Turkey preparing for membership. The conditions for accession are the same as for the states joining in 2004. However, more emphasis has been placed on democratic processes and structures particularly respect for human rights and the rule of law. In concluding their paper, Barnes and Randerson ask if there are any lessons which the teams negotiating with these future Member States of the EU could learn from the 2004 enlargement process. They focus in particular on the importance of ensuring that there is real change rather than lip service paid to the membership conditions and criteria.

In the second article, Professor Emese Peter Fayne from the University of West Hungary in Sopron, Hungary considers the entry conditions from the perspective of a national of one of the new Member States as well as that of an academic analyzing the processes involved. Professor Fayne is the holder of a doctorate in economics from the Karl Marx University of Budapest and a Jean Monnet Professor of European integration. It is a combination which would have astounded and no doubt amused Jean Monnet who hoped that in preparing the plan for the ECSC he had indeed created an institution for the whole of Europe.

Professor Fayne concentrates on the transformation process which has taken place in Hungary as it has moved from the economic and political systems which were in place during the Soviet dominated era of the country's history to membership of the EU today. She considers that integration of the new Member States into Economic and Monetary Union (EMU) is perhaps the most important challenge facing the European Union. The new Member States of the EU, unlike Great Britain and Denmark will not have an opt-out–the right to remain outside EMU. Indeed the new Members have declared that they want to join the monetary system as soon as is feasible. This is the’next major step in the integration process for Hungary, the second largest state to have joined the EU in 2004. Hungary has elaborated its strategy for Euro entry, but the target date has been changed several times mainly because of the problems of significant budget deficits. This inability to maintain consistent progress towards entry indicates that there are issues of economic governance which remain to be resolved.

Reconciling the views of differing groups in a democratic Europe

In the next two articles differing issues are analysed by the authors, but both are concentrating on the underlying problem of how a balance may be achieved between groups and their needs in a democratic Europe.

Professor Richard Stone concentrates on the highly problematic issues with which the democratic countries of Europe must grapple if the commitment to the principles of liberty, democracy and respect for individual human rights is to be maintained at the same time as the public is to be protected from the actions of terrorist groups. Professor Stone reviews the modifications made to the powers of the policy in the context of terrorist threats, and the safeguards which are needed as a result to ensure the protection of civil liberties. The main focus of his comments is the law of the UK, but the issue is considered within a broader European context, looking at the influence of both the Council of Europe and the European Union. The article begins with a consideration of how terrorism is defined, and the responses to Irish terrorism (in the Prevention of Terrorism, Temporary Provisions, Act 1974 and its successors), and international terrorism (in the Terrorism Act 2000, Anti-Terrorism Crime and Security Act 2001, Prevention of Terrorism Act 2005, and the current Terrorism Bill). The effects of the European Convention on Human Rights and the Human Rights Act 1998 are evaluated. Throughout his analysis stone highlighted the difficulties which exist in order to ensure that the balance which has to be struck in order to guarantee security and the protection of civil liberties is maintained.

In her article on the nuclear sector Pamela M. Barnes begins by briefly investigating the contested and fluid concept of democracy. She points to the evolution in the European Union of a complex and inter-locking set of democracies – that which has evolved within the Member States and that which is evolving within the European Union. Whilst some may feel that there is a deficit of democracy within the EU, Barnes argues that it is in some respects the price which is being paid for the opportunity to participate in the peace and stability in the geographical region occupied by the EU.

The EU is facing the challenge of not being able to provide a safe, secure, sustainable and competitive supply of energy to meet the growing demands of the people of the EU. At the same time, there is an increasing level of concern that the EUs Member States are not able to meet the targets which were agreed as part of the commitment to the Kyoto Protocol on curbing greenhouse gas emissions. The nuclear technology could play a major role in meeting both these challenges.

The use of this technology has proved to be controversial within the EU as a number of Member States are committed to either a no-nuclear or a phase-out policy whilst others are commissioning new reactors. As argued in the article, the need for energy requires all the means of generation of electricity to be available within the EU. This may make it difficult for the phase-out of the technology to be accomplished in the way some national electorates may wish, but the EU does have at its disposal tools of a legal framework and opportunities for dialogue so that a number of concerns about the nuclear sector which are cross-border in nature may be addressed.

Involving all the stakeholders

In his article, Professor Jo Carby-Hall concentrates on the development of the European’Union's Charter of Fundamental Rights, in particular articles 27 and 28 of the Charter on information and consultation and collective bargaining and collective agreements, respectively. He analyses the impact on a member state of the EUs vision of social democracy which is contained in the Charter using as his case study the development of the idea of the social dialogue in the UK. The concept of Social Dialogue, as developed within the EU, is the opportunity for the social partners – the employers and the trade unions – to be involved in a dialogue which has openness and transparency and is recognised formally as an element in the decision-making process information, the flow of information, communication between governments, groups, individuals has emerged as an important theme in all the articles of this volume. It is a crucial aspect of democracy and vital to the development of processes and procedures for justice and law in Europe.

Professor Carby-Hall includes in his evaluation the impact of the traditional forms of social dialogue in the UK which comprise collective bargaining and collective agreements; trade union recognition for collective bargaining; disclosure of information for collective bargaining purposes; and some former collective systems, namely the extension of terms and conditions of employment, wages councils and Statutory Joint Industrial Councils. He considers the influence of European law on information and consultation in three discreet areas, namely the transfer of undertakings; collective redundancies and health and safety at work. The more general aspects of information and consultation and the effects of European Works Councils are evaluated in his article. In concluding his analysis Prof Carby-Hall brings together seven thoughts which have led him to the general conclusion that the discreet notions of social dialogue which emanate from the Charter of Fundamental Rights of the European Union spell good laws, good governance and effective democracy.

In the final article Member of the European parliament for the East Midlands Bill Newton-Dunn (Liberal Democrat) highlights the importance of Europeans speaking with one voice in order to maintain the values of Law, Justice and Democracy in Europe. The European Union is a union of 25 Member States and 457 million people who use twenty official and many more minority languages. This is not a barrier to the creation of a single voice supporting the values which the people share. What is important is that the people of Europe are able to engage in debate and dialogue in an open and transparent manner on how Law, Justice and Democracy are achieved in Europe.

The authors contributing to this volume have analysed and discussed wide ranging issues in their articles but all illustrate the importance in the development of a democratic Europe of constant review and questioning of the extent to which these ideals are being achieved. If the meaning of the concepts of Law, Justice and Democracy in Europe are not constantly confronted and challenged in debate and dialogue then Europeans are denying the importance of the heritage left to them by Jean Monnet.

Pamela M. BarnesEditor

Note1. Miriam Camps cited in Duchene F (1994:399) "Jean Monnet, the first statesman of Interdependence", Norton, New York and London.