Over the past two decades, the European Union has experienced an increased disjuncture between its political vision for peace, prosperity and security and the democratic mandate of the people. This disconnect has been vociferously animated by sundry arguments of principle during the United Kingdom’s EU referendum in June 2016, the seismic decision by the UK to leave the EU as well as the continuing negotiations over exit terms between the UK government and the EU. When the European Union (Withdrawal) Act 2018 received Royal Assent two months ago, it marked a weighty moment in Britain’s troubled history with Europe. It represented democratic resistance to the EU’s politically hegemonic tunnel vision. In this article, I want to make three arguments about an overly-scrutinised and perhaps fatigued project of the EU: European integration. First, I want to offer a theoretical explanation for faltering European integration. Second, I want to advance some reasons why we should be cautious about European integration post-Brexit. Finally, I will tentatively grapple with how European integration ought to be structured.
I. Faltering European integration
Post-2009, the constitutional conundrum created by the EU’s response to the European debt crisis alienated transnational cooperation between member states. Coalesced against competing national interests which swayed in favour of larger member states and the increasing hegemony of the European Council and European Commission, deep-seated tensions emerged between market pressures and the people’s demands. The single currency had a specific ordo-liberal direction with Greece experiencing its effects first-hand. The election of Syriza in 2015 on an anti-austerity platform and the Greek Oxi referendum (where not a single region voted in favour of the bailout conditions spearheaded by the Commission) were managerially ignored by the EU. Greece was compelled to agree to stricter bailout conditions than had been posited in the referendum. Given the disequilibrium between the democratic mandate of the people and the EU’s seemingly interchangeable economic and political vision, the criticism hurled at the project of European integration is unsurprising. After all, to get rid of the EU’s institutional handcuffs is a fair reason to wish to exit the EU. Yet, the UK exited the EU without the European debt crisis as its most cogent justification. So what then triggered British disquiet about the EU? Perhaps the answer is found in Vote Leave’s alluring slogan: ‘take back control’. Behind this sits the most common objection: that the EU disturbs, disrupts and threatens British sovereignty. Yet, in reality, it has more to do with today’s uneasiness that arises from the historical constitutional nature of the EU legal order.
There are three key problems with the EU legal order that have less to do with its design than its purpose. First, its ‘political messianism’. Writing in 2011, Joseph Weiler identified the political messianism of the European integration project by exploring the 868-word Schuman Declaration, akin to Europe’s very own Declaration of Independence1. Its post-World War II rhetoric of peace, prosperity and the reconstruction of Europe omit that of democracy, accountability and representation. Hence, the justification for European integration was the ‘promise of a better future’2. In these terms, the European project of integration began as a peacekeeping mission, with democracy aloof. This then informs the second and third problems with the European construct: the democratic deficit and legitimacy crisis. Often intertwined and historically contingent, the median EU citizen lacks the ability to hold its leaders accountable for their decisions, is unable to directly influence the outcome of policy choices as they would be able to at national level and is increasingly distant to EU institutions, with electoral turnout rates at European Parliament elections declining with every cycle. Yet, these problems come not because the EU has failed in its mission to strengthen post-war European relationships, but because it is now tasked by its leaders to fulfil a role contemporary European society simply believes to be beyond its scope.
II. European integration post-Brexit
The European project of integration calls for a conceptual reassessment of the EU’s design in light of contextual factors throughout its 60-year history. The strength of the dialectical relationship between the people and the EU’s institutions with its peaks and troughs has markedly been influenced by the fluidity of crises. Nonetheless at present, there remain reasons to be positive. First, the Eurozone is no longer in a state of emergency after the stronger monitoring of banking and finance regulations cajoled the financial markets. Second, Europe’s refugee and migrant crisis is somewhat subsiding (though border deaths have surged3). Third, recent elections in the Netherlands, France and Germany have witnessed the defeat of right-wing populism (this strain of populism being a fear of the establishment). Bearing this in mind, it could be said the EU is turning a corner, and the UK’s departure from the EU will leave the 27 remaining member states readier to take on the world’s challenges. Yet, the feeling of apprehension that tickles the thought of a stronger EU lingers.
In GDP terms, the UK’s departure is equivalent to losing the 19 smallest member states4. On one hand, Brexit presents an opportunity for the EU to unite against British awkwardness in the continuing negotiations over exit terms. On the other, it closes the door on British scepticism that has blocked progress to an ever-closer union among the member states in areas such as defence, social policy and direct taxation. At first, it may appear like closing the door on a reputably obstructive partner is a good thing for European integration. However, the graveyards of Bosnia, national banks’ continuous overexposure to sovereign debt and the 120 million EU citizens living at risk of poverty and social exclusion is evidence that habits of cooperation and consensus-building cannot magically happen through treaty change, directives and regulations in such a short period. In this view, European integration — at least what is sought by the EU’s current leaders — is an intergenerational battle of monomaniacal proportions. Who now will question the fusion of member states on issues like the internal market, fundamental rights and the Eurozone? As such, the UK’s withdrawal from the EU signifies the loss of a vocal check and balance tempering the fervency of European integration. Although this loss is prima facie a pragmatic issue, it also presages that fast-moving and deeper integration of the EU is likely a self-fulfilling prophecy of folly.
III. The future for European integration
Since current European integration is not necessarily palatable to democracy and deeper integration seems unconvincing, is the answer to reform the EU or hold this middle ground (i.e. restricting national autonomy while pushing non-political integration)? I have three hesitantly skeletal points in response. First, at least for now, it is unlikely that other member states will follow the UK out of the EU. Current negotiations show the UK struggling to look like a nation capable of leading the world on key issues; internally, the UK is divided. Second, from a historical constitutional perspective, the EU was originally ‘a-democratic’. But, in many ways, the EU has become a threat to democracy — consider Greece, where the people became victims of a militant democratic model believing the tyrannical majority cannot be trusted5. As such, reforming the EU’s design is a viable solution. Some have suggested a mode of radical pluralism — a fluid system with no decided supreme authority, where laws and integration occur flexibly in an incremental process while maintaining legitimacy through national parliaments6. Although this allows for a powerful review of the EU’s constitutional identity, it may hardly lead to genuine compromise if the EU truly wishes to respect national constitutional autonomy. Consequently, this leads to the third key point. Since this middle ground is visibly unstable, stripping the EU’s treaties to their basic constitutional elements could mean retaining EU supremacy only in areas deemed to be the EU’s own constitutional identity (i.e. those elements collectively determined by the member states). Ultimately, this would mean maintaining national democracy (which allows EU citizens to hold their representatives accountable), while constitutionalising core EU principles7. Although it may not be an ideal solution, it is a little more pleasant than others.
Candidly, the European project of integration is too far down the line for member states to multilaterally abandon, but without some measures being taken to re-design the European construct, it may only take a few more decades for it to implode. If substantive changes are not made to the EU legal order and Brexit turns out to be a success, the effect on European integration will be significant. Yet, the same is also true of its reverse. In the present moment, perhaps all that can be said is that compared to other options available, the better able the EU can overcome the challenges it faces and demonstrate its ability to connect democratic voices with governance, European integration may not be faltered just yet.
[1] J Weiler, ‘The Political and Legal Culture of European Integration: An Exploratory Essay’ (2011) 9 I-CON 678-694
[2] Ibid, 683
[3] The International Organisation for Migration’s ‘missing migrants’ project approximates that more than 5,000 people died while crossing the Mediterranean in 2016, which is up from an estimated 3,700 deaths in 2015. See: https://missingmigrants.iom.int/region/mediterranean
[4] For more information concerning the impact of the UK’s withdrawal from the EU on European integration, see: Tim Oliver and others, ‘The Impact of The UK’S Withdrawal on EU Integration’ (Policy Department for Citizens’ Rights and Constitutional Affairs 2018)
[5] For a discussion about reimagining the European integration project through constitutional pluralism, see: M Wilkinson, ‘Constitutional Pluralism: Chronicle of a Death Foretold?’ (2017) European Law Journal (forthcoming)
[6] N Krisch, ‘Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space’ (2011) 24 Ratio Juris 38
[7] For further analysis of scaling back EU treaties, see: D Grimm, ‘The Democratic Costs of Constitutionalization: The European Case’ (2015) 21 European Law Journal 460-473
Josiah Senu
LLB (LSE) ’19 and Articles Editor of the LSE Law Review Summer Board 2018