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Renewed or Irrelevant: The European Union after Brexit - Professor Leszek Jesień, Collegium Civitas

Opinions about the future model and how the EU will function given the consequences of the 2008 financial crisis, 2010 eurozone crisis, and following the Brexit decision to leave the EU, call for the presentation of several assumptions.
The fundamental assumption is that it is in Poland’s vital interest that there be a strong European Union, that it performs efficiently in accordance with the stated preferences of the various Member States, that it functions in such a manner that the sovereignty of its Members and the principles, broadly construed, of subsidiarity and proportionality be observed in full, and that the future EU comprises the greatest possible number of states that derive their existence from the values and history of European civilisation—for the heritage of this civilisation is the only source in which to look for a binding agent for this organisation. It is not in Poland’s interest that a future Union be weak, divided, or capable only of developing positions that subsequently fail to win the support of its Member States and its citizens.
The UK referendum, particularly the outcome, marked a radical watershed in the integration process. For the first time, a majority of the citizens of an EU country, and a populous one at that, had expressed a negative opinion of EU integration. Obviously, this is likely to produce a variety of effects, but what seems most important from the perspective of this text is this: a numerous group of inhabitants of a historically important country sees no future for themselves in a single European family. This means that they are not comfortable with us and at least some of the blame for this falls on parties other than the British—including Poland. Yet, and most importantly, our common European institutions—the European Commission, primarily, but also the European Parliament and the European Council—are at fault. This contention is not meant to name culprits, for this seems institutionally irrelevant even if it might have political relevance. The latter could happen, in particular, should the democratic process in the EU Member States develop in such a way that the attachment of blame becomes an element of (or a prerequisite for) institutional reforms. Indeed, changes to the EU meant to make it more responsive to the expectations of its citizens should concern the functioning of the institutions politically responsible for its shape, efficiency, and image. 

The political relationship of the EU centre (institutions) and its primary components (Members) is disturbed. The EU centre has fallen out of accord with the Member States all too often and to an excessive extent. This is as if one part of the human body would set out to compete with another. Medicine tells us that this happens and when it does, an illness of the entire body results. It follows that the European Union is ill, its disease consisting, essentially (and among other things), of a quarrel over the role and place of the Member States. This sort of tension is by no means novel; basically, it has persisted since the inception of the EU organism, suffice to mention only the federalists versus the Europe-of-national-states (l'Europe des patries) conflict. However, today it is not about the nature of integration or the level of qualified majority voting in the Council of the EU, or the place and role of supranational institutions—the Commission and the Parliament, or the relationship between the Council and the Parliament; it is about the unravelling of integration, so radically exemplified by Brexit. This dispute has acquired an existential character and may result in the Union’s ceasing to exist or becoming meaningless to its Member States and the outside world alike. Most interestingly, the dispute cannot be resolved in opposition to the Member States, for in today’s Europe they alone provide full democratic legitimacy consisting of the conduct of political discourse, elections, making and enforcing of laws, and ensuring security. All these elements of legitimacy are strengthened through the cooperation of the nation-states. This, however, does not mean at all that cooperation among the Member States is superior to the sovereignty of the Member States, that is, that it is distillable, so to speak, and severable from them. This cannot be done and attempts to that end amount to destroying the Union. 

Given the present poor condition of the EU, integration must return to its roots, construed as follows: the Union makes sense only inasmuch as it strengthens and supports the states that form it. In other words, it should ask the states about their and their citizens’ concerns and then attend to these concerns (and to do nothing more). The European institutions should eat humble pie and acknowledge their subservience, for only then can they seek support among the citizenry. Only then can they reduce the political distance between the centre and the periphery. The citizen must be the sovereign.

Doubtless, setting to work on a new treaty should be the most important part of repairing the EU. Presumably, this should be done in such a way that the outcome could be interesting to the British as well. In this way, a new formula of European integration could serve at the same time as a fundamental instrument for mending relations with the United Kingdom.

The resulting new European Union treaty should supersede all existing ones. This would mean embarking on a fundamental repair of the integration process, in the spirit of respect for the sovereignty of nations and for the equality of all states. It should be remembered that, although the latest EU treaty was negotiated with the new Member States following the 2004 enlargement, its basic core, deriving from the Treaties of Rome and of Paris, has remained unchanged.
As the starting point for the development of a new treaty, consideration should be given to the question why a majority of the British (with a high turnout of over 72%1) chose to vote for their country’s exit from the EU. 

One of the most important causes of the British people’s dissatisfaction with the membership is the waning support for the EU and a feeling that the EU has been concerning itself with other matters than those it should be addressing such as the migration pressure and terrorist threat.2 Poll findings and media commentaries point out that the scale of the EU’s legislative involvement has been, at the same time, too deep and yet inadequate. This has given rise to a feeling that the principles of subsidiarity and proportionality, which accord pre-eminence to the states’ activity and hold that the EU should step in only where a given objective cannot be achieved by the states on their own, are being contravened. 

The ways of legitimising a Member State’s political and legislative activities and the Union’s public policies and legislative activities are different. The classical legitimacy of the state derives from the democratic process, which takes place with each election. For the entire EU, given the absence of a classical political discourse, elections to the European Parliament establish a partial mandate to participate in the decision-making procedures. Democratic elections to the national parliaments lead to the formation of governments whose representatives (ministers, prime ministers, presidents) participate in the work of the Council of the European Union and the European Council, whose bodies, in turn, participate in determining the Union’s public policies and making European laws. Thus, the EU has indirect legitimacy. Its formal and real legitimacy does not exist separately from the legitimacy of the Member States.
The differences in the legitimacy of the Member States’ and the EU’s activities point to one of the basic sources of the different perceptions of the relevance, adequacy and citizen-focused nature of its public policies and the degree to which these are consulted. The legitimacy of the Member States’ activities, being more natural and closer to the voter (even if individual states are perceived as incapable of dealing on their own with problems of the contemporary world such as external security and globalisation pressure), the EU is perceived either as an organization ill-equipped to meet the contemporary challenges or, conversely, as one over-regulating the reality beyond reasonable needs.

The differences in the perceptions of the adequacy and effectiveness of the EU’s activities are another basic reason for its non-acceptance. The British voters came to feel that the sovereignty of their country was being infringed. This happened even though the EU’s activities have formal legitimacy through the European Commission nomination procedure (the involvement of the Council of the European Union, European Council and the European Parliament) and the law-making procedure (joint decision by the Council of the European Union and the European Parliament, or single-handed decisions by the Council of the European Union). This accusation has been aimed, in particular, at the European Commission, which has come to be perceived as a body both devoid of a direct democratic mandate and aspiring to discharge executive functions of the EU much like a classical executive branch. Never has the Commission received legitimacy in a different way, but its growing importance has turned questions of its legitimacy into a political problem. 

The EU (and, at times, the European Commission as the representative of the Member States in global economic forums) has been systematically accused of making an inadequate effort to defend its own and the Member States’ interests in the context of globalisation, predominately vis-à-vis such global powers as China, Japan or the United States. Member State citizens and businesses have felt that the EU is ineffective in this respect. The Commission has responded belatedly, or inadequately, to external dumping practices while focusing at the same time on promoting an ambitious climate policy that is putting a burden on the competitiveness of the economies of EU states. This has resulted in chronic systemic problems with the Union’s economic growth and, by the same token, with ensuring the welfare of its citizens. Thus, the Union rather than serve the citizens of the Member States has become the source of their troubles. 

In other words, in recent decades the phenomenon of maladjustment has been creeping into the EU’s public policies. One particularly drastic evidence of this is the situation in Greece. Greece fell into trouble through its permanent structural economic non-alignment with the other common currency countries. This is neither an atypical situation nor one unprecedented in the EU. What’s more, diversity in this area—even asymmetry in integration benefits, able to be offset through transition periods and fiscal transfers via structural funds—is the Union’s strength. Yet, Greece’s involvement in this process seems to be deteriorating its position. For the first time, we are witnessing the phenomenon of a systematic absence of integration benefits. This undermines one of the pillars of the residual, indirect (output-oriented) legitimacy of the EU arising from benefits accruing to a sufficiently large number of social strata.

For this reason, the negotiations on a new treaty should address all the themes of the relationship between the Member States and their institutional representation in the centre, as well as the three most important areas: the fundamental principles of the EU, the EU institutions, and common policies. 

The restoring of balance between the centre of the integration process and its primary participants, i.e., the Member States, could address several issues.

The first to be considered is the streamlining of the EU’s exclusive competences, which today cover the customs union and trade policy, competition policy, monetary policy for the Eurozone, and the conservation of marine biological resources.

Because there are functional relations between the customs union and trade policy, and because monetary policy should remain in the hands of a single actor, provisions concerning these areas arouse no doubts in principle. However, it is difficult to make as strong a case for the management by the Union on a supranational level of the conservation of live marine resources. Accordingly, the EU’s exclusive competences could be reduced by giving up this principle. 

The setting of common rules of competition belongs to the canon of the EU’s exclusive competences. In principle, this is unarguable. In the past it was believed—and rightly so—that stronger Member States should be more attentive to the rules of internal market competition. However, in recent years the practice of applying these rules with respect to state aid implies that lobbying efficiency has become the decisive factor. For this reason, the application by the European Commission of competition rules should be subject to oversight by the Council of the EU and the respective decision-making procedure should be modified, from a unanimous vote to a qualified majority, for in this case the unanimous vote requirement restricts the Council of its ability to exercise oversight over the Commission. 

Once the field of the EU’s exclusive competences has been reviewed, consideration should be given to reducing the EU’s impact regarding the competences shared with the Member States. It is the Member States that should be playing the main role in such areas as the environment, transport, social policy, energy and the area of freedom, security, and justice, with the Union in a supportive role only. This would be in accordance with the application of the principle of subsidiarity—the EU would take only such actions as are necessary when states acting on their own fail. 

Following this logic further, all EU public policy initiatives—barring those within the limited perimeter of its exclusive competences—should be subjected rigorously to the principles of subsidiarity and proportionality. As things are today, these principles, rather than be constitutive for the relationship between the centre and the Member States, play the role of a fig leaf.

Under the principles of subsidiarity and proportionality, it should be necessary in each case prior to the commencement of the legislative procedure to convince the Member States’ national parliaments and governments of the advisability of the European Commission’s coming forward with a legislative proposal. Thus, the consent of national parliaments would be required before EU bodies make laws, a principle sometimes called a “green card” procedure.

Bringing the EU closer to the citizen should include bringing the law-making process closer as well. To this end, the existing European law-making institutions should include representation of the national parliaments of the Member States. The ordinary procedure, which now links the European Parliament with the Council of the European Union, should allow for formal constitutive participation of national parliaments treated as a single house, equipped with the powers of making known their position and participating actively in negotiations. This is a necessary condition given the specifics of the work of these parliaments, which by their nature are focused on acting within rather than outside their states. Unless their practical operation is accepted, their participation in the making of laws at the EU level could be illusory. Modern means of communications are so efficient and could thus vastly facilitate the involvement of many parties in dispersed negotiations that allowing national parliaments to take part in law-making at the EU level is merely a question of will. Indeed, the making of laws is, alongside the political debate, the quintessence of the parliamentary system, yet today the national parliaments are excluded from it at the supranational level. 

The participation of the national parliaments can be made eminently more efficient if the scope of application of the ordinary procedure is reduced. To this end, a careful review should be made of areas in which this procedure is applied, with a view to shifting the burden of European law-making firmly to the Council of the European Union. The number of fields and their scope in which the ordinary procedure is applied should be reduced to the minimum established following the identification of areas in which the involvement of supranational institutions (European Parliament) is necessary due to the nature of the issues. For instance, agriculture, energy or taxation issues are not supranational in their essence (with some exceptions), while trade policies towards third countries and other regions of the world contain a distinct supranational component. 

With the scope of application of the ordinary procedure reduced, basically the Council of the European Union should decide unanimously within this streamlined framework. Exceptions from this rule should be admitted, such as increased qualified majority thresholds (relative to those currently in effect) or the Ioannina compromise. The essence of both solutions is that they make it possible to defer decisions on which a distinct minority is developing and which ultimately should not be adopted. At the same time, the procedures in effect in the Council of the European Union should not enable any single Member State to block the decision indefinitely. 

The role of the European Council in making laws and taking decisions on common policies should be increased significantly. On the whole, the European Council should be a political arbitrator and an appellate institution. Where the Council of the European Union or, indeed, the entire political apparatus (the European Parliament with the Council of the EU and the national parliaments) is unable to decide on an issue, this should constitute the grounds for an appeal to the European Council. The European Council should decide unanimously in each case. 

The inability of the European Council to decide unanimously on an appeal would mean that the decision in question has not been made because of the state of things in the Member States, where no political or social acceptance transferable to the EU level can be won. This would be a sign of the political health of the entire EU organism. Not every idea bureaucratically agreed and substantiated can—or ought to—be implemented. The acceptance of political imperfection means consent to a diversity that cannot be overcome at a given moment in time, i.e., consent to diversity and imperfection that are constructive rather than signifying failure.

Referendum results: 51.89% for the UK leaving the EU vs. 48.11% for remaining. In absolute figures, the difference between “yes” and “no” votes was nearly 1.27 million people.

See, for instance, Eurostat No 85, May 2016, http://ec.europa.eu. 
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