By Mauro Casarotto, Secretary General of FAEF

Why the EU will never resolve the conflict with national courts
(Originally published on Europe Today on October 28th, 2021)

The European Parliament will take the Commission to the European Court of Justice. The accusation for the Commission is that of not fulfilling its tasks, being too weak towards those Eastern Europe countries that receive redistributed funds from the EU but at the same time do not respect its rules and principles. These states are governed by populist conservatives who enjoy a broad consensus and who continue to humiliate the EU on civil rights.

This situation demonstrates the weakness of the EU in terms of law enforcement. The EU is in fact forced to use as leverage its only real strength: monetary injections and the economic advantages of the single market.

The casus belli is the mechanism linking the payment of European funds to the rule of law. Polish Prime Minister Mateusz Morawiecki has declared that Brussels is ‘threatening with a gun to the head’ and has warned the European Commission not to start a conflict on the issue of civil rights.

In the meanwhile, the Court of Justice of the EU has ordered Poland to pay the Commission a €1 million daily penalty for failing to suspend the application of national provisions relating to the recent reform of the organisation of the judiciary.

The case is extremely hot after the clash between Poland and the EU following the decision of the Constitutional Court in Warsaw, that recently overturned the principle of the primacy of European law over national law. A similar thing had already happened with the German Constitutional Court, that considered questionable the possibility of approving the measures of the Next Generation EU plan without the approval of the national parliament.

In addition to these situations, we recently had statements by the Slovenian Prime Minister, Janša, who maintained that Brussels is abusing its power in matters of the rule of law, not to mention the Hungarian Prime Minister, Orbàn, who for years has been an endemic opponent of the European institutions on these issues. This shows how the conflict between the EU on the one hand and the member states on the other, but also between the European institutions themselves, is growing.

Extent of the European Union’s democratic and functional deficit 

The conflict that has opened up between the European Parliament and the Commission may be misleading and make one think that the Parliament is finally fighting for more democracy and equity in the Union. But this is, once again, a dance of fatuous fires, lacking in substance.

Attacking the Commission, which is appointed by the governments and confirmed by the votes of the European Parliament itself, is like shooting fish in a barrel. The Union’s lack of fairness and democracy involves all its institutions. First of all, the Parliament itself, which is not a true legislative body, being without an independent power to initiate legislation and only weak powers of control over the other institutions. Then, of course, there is the Commission, which is not a true executive, since its members are grotesquely divided among the member states according to the logic of one state – one commissioner, which only reproduces the conflict between different national interests (every country must be satisfied, forget the common interests of all Europeans!). And last but certainly not least, the Council. The body to which the treaties have entrusted the final decision-making power and which is subject to cross-vetoes and conflicts between the national interests of the individual member states, to which are added party interests or personal interests of the various political leaders.

Ideally, the heads of government who sit on the Council look after the common interests of all Europeans but, de facto, they sit on the Council acting in accordance with a mandate to promote the national interests of their respective countries.

This happens because the role of head of government is won after general elections in one’s own state. The heads of government of the member states are accountable to the national electorates and only these electorates can decide on their re-election or rejection. Whereas the European electorate (the totality of all citizens of the Union) cannot judge nor terminate their role in the EU Council. Nor does the European Parliament have the power to control and counter-balance their actions.

The conflict of interests in the EU Council, generated by the clash between (partial) national interests and common interests (interests of all EU countries and citizens), is one of the worst ever. And one of the most striking cases of the toxicity of a double mandate applied to politics.

The trend of the pro-Europeans 

In this situation federalist movements (and pro-Europeans in general) have been pursuing the following line for decades: let us give globally recognised normal democratic  power to the European Parliament as the body representing the citizens and, one fine day, we will have a more democratic European Union that truly takes care of the common interests of all European states and citizens.

The initiative of David Sassoli, President of the European Parliament, to go to the Court of Justice is part of this ideal and strategic trend, the final result of which should be the ‘ Federation Europe’.

Unfortunately, beyond the success that this specific action may have on the intemperance of some eastern governments, there is no chance that this will be the beginning of a process to solve the many contradictions and inefficiencies of the Union. Let alone the birth of a federal union.

The EU, in fact, is not a federation like the USA (the first, since 1789), Switzerland (since 1848), Australia (since 1901) or Austria and Germany (since immediately after the Second World War). These countries have endowed themselves with an authentic federal constitution, whereas the European Union was born – and remains! – an intergovernmental system based on treaties.

The constitution, in true federations, determines precisely which powers are managed by the federal body and which by the individual member states and, with equal precision, it draws a barrier beyond which the power of the federal government cannot act. Beyond this barrier the member states remain fully sovereign and autonomous, preserving their traditions, languages and peculiarities.

In true federations there is no room for institutions such as the EU Council in which the conflict between common interests and national interests is not only unresolved but also unresolvable. This conflict is fuelled by the original errors of the Treaty of Lisbonwith its opt-outs and continuous exceptions aimed at satisfying the egoistic interests of each state.

Constitutional courts remind us again and again how intricate the relationship between national parliaments and European institutions is. This relationship is governed by the Treaty of Lisbon unsuccessful division between the Union’s exclusive competences – basically only economic matters, with the obvious exception of the single currency, which is snubbed by many countries – and shared competences – including civil rights issues – where chaos reigns.

Rebus sic stantibus 

Moreover, every international treaty is subject to the uncertainty and destabilising threat of what the legal tradition has called ‘rebus sic stantibus’ (ancient Latin motto for “things thus standing”). That is to say: once the original conditions under which a state had signed an agreement in the form of an international treaty – such as the Treaty of Lisbon and all the previous treaties that gave origin to the EU – have changed, then that state has the right to no longer observe the treaty rules.

In practice, the state breaks its covenants when it chooses to do so, as conditions are of course always changing. Therefore, even if this state has conferred or shared some powers with international organisations (such as the EU or the UN), it can at any time re-centralise all its power within its own borders.

In the case of the European Union, where is the force that can prevent this?

It will not be similar to Brexit

With the Brexit crisis the EU was able to get away, essentially amputating the wounded part, with the complicity of the subsequent sequence of difficulties faced by the British people that showed how the current UK’s political system is weak.

Let’s remember that if a vote were held today, Brexit would probably not prevail again. But it is still undeniable that a sizeable minority of Britons, very close to half, no longer want anything to do with the EU.

In short one could say, as so many pro-Europeans have said: it was the British who made a mistake; we still go on together on the right path.

This situation will not be repeated with the Eastern European countries because they do not want to leave the European Union at all. Instead, they want to enjoy its monetary resources and its single market for a long time to come, with the competitive advantage of cheaper labour and lower taxes. All this without having to adapt to the rule of law standards of most other member states.

It should also be borne in mind that while exit from the EU brings the UK strategically closer to the USA and Commonwealth countries, the eventual realisation – whether agreed or conflicting – of a Pol-Exit or Orban-Exit is potentially associated with a rapprochement of these countries with Russia or non-European powers such as China. This would lead to a situation similar to the one that existed before the fall of the Berlin Wall.

The strategic implications for a European Union, without its own defence system and foreign policy, are potentially very serious.

After its manifest impotence in the migrant crisis, in the crises in Libya and the Arab Spring, in Syria, in Iraq and, most recently, in Afghanistan, this would be the definitive abdication of Europe’s role on the global stage. The contradiction of a continental bloc of potentially over half a billion inhabitants reduced to impotence in foreign policy.

The only solution 

There is only one political and institutional solution to this deadlock, and that is to create a European Federation on a constitutional basis, which would definitively overcome the intergovernmental system based on treaties.

There are a number of best practices that Europeans can draw on, first and foremost the Philadelphia Convention of 1787, which established the United States of America. All pro-European politicians and movements that do not push for a constitutional and federal solution should be outraged by the absence of any reference to a federal solution in the Conference on the Future of Europe launched by the EU institutions.

It is clear that the European institutions and the governments of the states have no intention of abandoning the intergovernmental system at this point in time. This to the detriment of the citizens of the EU member states and those of the countries that could become part of a new federal union, including Switzerland (already a federal state), some Nordic countries such as Norway, Balkan countries and, last but not least, the United Kingdom – because this would be a completely different and better solution for everyone. With the sole exception, of course, of those politicians who have made the art of division and conflict the reason for their electoral and personal success.