April 26, 2017
by Herwig Hofmann and Catherine Warin
EU law is not what it used to be in the early days of integration some sixty years ago.
Having started in the shape of the ECSC as a special-purpose organisation of administrative nature for regulatory cooperation, the EU subsequently added constitutional frameworks defining the relation between different sources of law in a multi-level legal order, building a well-developed system of protection of fundamental rights and an institutional structure capable of issuing legislative and non-legislative acts.
European integration is deepening not only with respect to the amount of policy areas addressed by ‘Europeanisation’ but also by the depth of EU involvement in systems of implementation – a development furthered not least by the various agencies coordinating implementing activities. From that point of view, after sixty years and many crises, the legal body of the EU is maturing.
Politically, however, the EU remains a vulnerable structure. One of the reasons is the fact that the division of competencies between the EU and the Member States maintains national powers in crucial matters relevant in times of crises including citizenship, defence, definition of economic policies to name a few (see e.g. the blog-post in this blogdroiteuropeen anniversary column by V. Couronne, J.-V. Louis).
Although core values underpinning the constitutional construction of the EU are oriented towards overcoming potentially explosive conflicts and finding solutions in the spirit of compromise, consensus and moderation in reaction to extremisms (J.-C. Gautron), the construction remains fragile.
Often the debate is not whether a policy is good or bad in the eye of the observer, but criticism of a chosen policy often turns to criticism of the EU as decision-making level. Discussion of why that is, should guide, in our view, the debate about the future path of EU law and policy.
It would appear to us, that some reasons for the fragility of the EU constitutional system relate to structural deficits of the EU in its current form. Some of these have been described in previous posts in this series as related to institutional shortcomings (J.-C. Gautron) or the continuous existence of a social deficit of the EU (La Rosa).
These are issues which have not been sufficiently addressed by the Treaty of Lisbon. They have also become more clearly visible in times of economic and social crises.
Other matters contributing to the fragility of the EU as a whole stem from the unprecedented deterioration of values underpinning the EU in some of its Member States including Poland and Hungary. Independent judiciaries and separation of powers, freedom of the press and academic freedom are values which should not be negotiable, but the EU institutions lack the resolve and to a certain degree the powers to address this ‘rule of law’ crisis in the EU. How should citizens trust a constitutional system, which does not dare to protect its core values even internally?
In our view, the multiple challenges of the ‘polycrisis’ of the last decade, however, also offer opportunities to sort out priorities and bring back the resolve to take initiative on the EU level. Some of the proposed solutions emphasise the need for unitary responses, others insist on accepting and making use of the diversity of views on the Union’s problems. In our view, three areas seem to merit most attention:
One is the focussing on the values proclaimed in the Treaties, especially Article 2 TEU (V. Christianos, F. Péraldi Leneuf, F. Berrod, L. Clément-Wilz). The idea that the EU level can preach to the Member States what it does not achieve itself is unsustainable. Democracy and transparency, effective judicial protection in integrated legal systems must be furthered. It is for example dangerous to treat Articles 9 to 12 TEU as ‘constitutional poetry’, unrealised in daily action. The EU must lead by example and not claim exceptions for itself it cannot be seen granting to Member States. This is a question of change of law as much as of change of mentality in the corridors of the European institutions.
Another matter is to add a true social dimension to EU integration. That might be a matter of multi-speed integration. But if sixty years of integration teach anything, then that it is sometimes necessary for a group of 6, 9, 12, 15, 19 or 27 Member States to move ahead and let others to decide if, when and how to follow (J.-P. Jacqué).
Finally, the single market, initially at the heart of the Treaty of Rome’s model of integration, must be revived and adapted to the digital age. Much of the EU’s acquis for the internal market looks as if it were written for economies of the past (O. Tambou). The digitalisation of the economy, long underway, is too often absent from the minds of the rule-makers in Europe. Especially young people notice this and ask themselves (and us as law teachers) what the talk about the single market is about if they cannot even get access to content which is legally available in other parts of the Union. This will contribute to the fact that all individuals (including, but not only, economic entities) can benefit from the EU (and be aware of it).
Do we need a new Treaty to achieve any of this? Whilst some changes may require Treaty amendments, the existing Treaty set-up gives enough room for much further action, given the political will and legal skill. Take just the example of the further development of the EU’s Common Foreign and Security Policy that some authors on this blog have also called for (J.-C. Gautron and N. Ligneul). The Treaty allows for much more than has been done so far.
All in all, it is the constitutional nature of the EU that solutions are not shaped on the EU level alone, but come to life in the diversity of the EU’s legal systems and cultures through cooperation and collaboration. But such cooperation requires political leadership and steadfast adherence to values – not just in talk but also in action to shape the next sixty years of a peaceful and prosperous Europe working for all its citizens.RSI Blog