​After Brexit: Time for a Rethink in the EU?

Brexit represents a failure of the UK’s political elite. It also represents a failure of the EU. The UK was always an awkward member of the EU. Nevertheless, rupture was not intended or sought by either side. Cameron triggered the referendum on membership in order to call the bluff of UKIP and expected to win. It became an act of self-defenestration. 
 
The EU has responded defensively to the UK’s departure. It has stressed the importance of a ‘rules-based’ union where there are no departures from a ‘level playing field’. The rule book has become an end in itself rather than a means to an end. It has established a new relationship with the UK based as much on deterring others from following the UK as on maximising the mutual benefits from close ties. This blog looks at the outlines of a different kind of EU response. It asks whether the departure of a major member suggests that the EU should engage in some introspection and rethinking of the kind of union it wants. ​

Unitary or dualist
 
The EU’s current model for how to achieve the objective of ‘ever closer union’ involves progression towards a unitary model of Europe. The alternative is to reinforce what is called a ‘dualist’ structure where member states remain the main sources of authority in the union.
 
The unitary model
 
In the unitary model the EU takes on the attributes of a state and becomes the main source of public policy and the law. It already has the symbols of a state, a flag and an anthem, its own legal personality, and its representatives abroad have the status of ‘ambassadors’. The path ahead in terms of public policy is also mapped out: monetary union to be followed by a shift from bank-based credit markets to a unified capital market; the COVID emergency recovery package to be followed by fiscal union; and a common foreign trade policy to be accompanied by a more potent common foreign and security policy with its own union capability to apply force. 
 
The dualist model
 
Under the dualist model the member states remain ‘masters of the treaty’ conferring its powers, retain their own independent source of legitimacy as actors and are able to assert their role as the most comprehensive source of authority for their citizens. ‘Ever closer union’ stands for ever greater cooperation between member states who retain their own autonomy of action and ability to decide in which fields they wish to cooperate with other member states in different formations. It is a union of variable geometry. 
 
The path to the unitary model
 
For some time, EU ‘federalists’ have pursued the unitary model and the dualist model has been losing ground. There are essentially three reasons why the unitary model has crowded out the alternative: First, the functionalist dynamic pursued in the EU sees democracy at the member state level as creating friction with democracy at the union level. Unless there is a clear hierarchy of powers, conflict will result between levels. Functionalism looks to supranationalism at the EU level as the answer. Secondly, the EU has pursued a form of ‘identity’ democracy based on rights promulgated and interpreted at the EU level. Thirdly, the limitations on the extension of union authority in the Treaty base have turned out to be extremely weak. 
 
Functionalism and the quality of democratic association
 
The EU and its predecessors have followed what is known as a functionalist route towards ‘ever closer union’. This means putting practical tasks and practical problem management ahead of the pursuit of political values such as the quality of democratic association. The assumption has been that practical achievements in one area of policy would lead to the taking on of practical responsibilities in other related areas. In turn, practical successes at the EU level would pave the way for political association at the EU level. 
 
From its own functional perspective this approach has worked well to extend EU policy making over ever wider areas. But from the perspective of the fundamental principles of democratic political association it has had two drawbacks. 
 
First, the institutions charged with functional responsibilities have achieved a position of power and influence that has given them a privileged position in shaping the rules and institutions of political association. This has applied most notably to the role of the Commission. But functionalism has also empowered the ECJ and EP to play a major role in determining their own future in relation to other potential institutional arrangements. 
 
The second drawback is the functionalist assumption that a dualist structure would lead to built-in conflict between different forms of jurisdictional authority within the union. Functionalism is consistent with a view of a union built around a hierarchy of norms and laws. The idea that democratic authority could come from the bottom up, or that it could be exercised in different formations, or side-by-side, have each been seen as obstacles to effective supranational policy making.
 
Identity and representation
 
Most democratic organisations of power around the world bring together electoral representation and declarations of citizen rights. Rights claim ‘peremptory’ status. They claim to stand at the top of the value chain, apply to all citizens by virtue of their being humans and do not depend on the consent of states or even of individuals. They reflect in part a distrust of electoral processes where majorities can misuse their power.
 
In the case of the EU, decision processes build in the voice of the member states and their citizens mainly through the Council of Ministers and through the so-called ‘yellow card’ system that enables national parliaments to enter reservations about Commission proposals.The EP is only weakly representative and has a longstanding majority in favour of doing more at the EU level. The integrationist majority works together with a Commission that has a self-interest in using its right of initiative to bring forward policy proposals and with the ECJ that follows a philosophy of ‘integration though the law’ of which it itself is the arbiter. 
 
In this mix, the European Declaration of Fundamental Rights contained in its treaty base can be used to reinforce the union level. The rights can be applied directly, and in addition, legislative proposals of the Commission routinely appeal to the Declaration as a means of legitimation. This approach essentially relies on linking citizens to the union level by promoting a sense of EU identity built around rights. It is a top-down approach that circumvents building up from the bottom through the much less predictable processes of representation.
 
As a result of the empowerment of EU level institutions for functional purposes and a use of identity instead of representative processes, the survival of a dualist approach has depended on those provisions in the EU treaty base that are intended to limit EU powers. These centre on the provisions for conferral, subsidiarity and proportionality. None have worked as effective limitations on assertions of power at the EU level.
 
Limitations: conferral, subsidiarity & proportionality
 
The weakness of the principle of conferral is that apart from areas under the exclusive competence of the union, it depends on the principles of subsidiarity and proportionality to limit the use of union powers in the remaining areas of public policy where the union can share, support or supplement the powers of member states. Unfortunately, the principle of subsidiarity has been ineffective as a limiting principle (see post of 11/1/2018). The proportionality principle also has not proved to be an effective limiting principle.
 
Proportionality depends first on whether a proposal for union level action lies within union powers. This first test fails to act as a limiting device in part because of the many areas of shared powers and, in part, also because with a treaty of over 150 pages and 358 articles it is a challenge not to find some basis for union action. It depends secondly on whether the means chosen by the Commission are suited to the ends to be achieved. Here the Commission can claim the need to take preventive action in order that action by member states does not cause problems, including obstacles within the Single Market. Thirdly, there is a test of necessity where the Commission can claim that action by member states may simply be ineffective and that the objective can only be achieved by union action. Finally, there is proportionality in the sense of whether the measure is limited to what is strictly necessary to achieve the objectives. Here again a union claim of what is strictly necessary is easy to assert. The rationale for the proposed Digital Services Act illustrates how easily each of the four proportionality tests can be passed. They have become formalities. As a result, the limitations on EU policy making intended under the conferral procedure depend on the willingness of the constitutional courts of member states to issue a challenge, as happened in May 2020 when Germany's constitutional court challenged the bond purchase program of the ECB.
 
Dualism and variable geometry
 
The EU finds itself in a situation where there is no effective check or block on the development of the union as a unitary state. EU institutions are in the driving seat and in a position to control further institutional development; the union can rely on a union level assertion of rights with peremptory effect as a means to assert identity with less concern given to how representative it is of public opinion; and the main limiting articles in the treaty of conferral, subsidiarity and proportionality are ineffective in practice. 
 
The question is how far this direction of travel will allow for the expression of the great diversity of opinion that exists in Europe and of the many different interpretations that can be given to the shared history of its peoples. The danger is that progression towards a unitary state will itself become a trigger for a backlash. The backlash may be labelled as ‘populist’ or ‘nationalist’ but the driving force may be the EU model itself.
 
In these circumstances it would be prudent for the EU to give further consideration to the dualist model. This would mean empowering national parliaments, reducing the areas of shared and supplementary powers, tightening the definitions of subsidiarity and proportionality, and allowing for a more differentiated pattern of integration. Differentiation would allow a sufficient number of EU member states to cooperate in different areas together with no presumption of full EU participation as the end objective.