EUROPEAN UNION : WE OUGHT TO BE EU--SKEPTIC / DER SPIEGEL ESSAY

05/23/2014 12:22 PM

Essay

We Ought To Be EU-Skeptic

By Roman Herzog

Europe doesn't have a nation, not even a "European public".

In the run-up to the European election, we ought to be more skeptical of the EU. The union's fundamental design flaws could lead to its disintegration. An essay by former German President Roman Herzog.

I.

The European Union is in a deep crisis. The reasons for the crisis are manifold, and would, each on its own, have been endurable, even over decades. In the present situation, however, they have become intertwined and so will persist. If those responsible don't face up to them decisively, the long-term prospects for Europe do not look good.

The debt and currency crisis makes it abundantly clear there is something very wrong with the constitutional structure of the EU, as well as with the political conduct of particular members. One doesn't know which is more puzzling: that some new members could trick their way into the euro zone and into the EU itself with false figures, or that those in Brussels failed to notice bogus applications.

Average citizens, even halfway informed about current developments, will be concerned and will expect reassurance above all on two points: They would like the prosperity achieved in Europe to be reasonably secure, and they will also want Europe to be strong enough for Europe's voice to be heard in the newly forming world concert. Such citizens deserve to be understood.

The description of the "new tasks" may sound brief. In reality it encompasses a huge program, which only a very strong institution would be capable of mastering. Whether today's EU is able to display this strength is open to doubt, therefore this issue is worth pursuing in greater detail.

In hindsight, the EU has not been strengthened by the numerous new entrants of recent years, but weakened. Political strength of the kind needed today in Europe is something fundamentally different from size, especially mere territorial size. It is delusional to think that an institution like the EU simply has to be as big as possible for it to be strong and capable of surviving under pressure.

Size can equally make it become rigid and inflexible, because of excessively fast growth and even more so because of the challenges of internal uniformity. This is particularly risky at a time such as ours, when every day brings new risks and problems -- but also new opportunities. In such situations, size can be an advantage. But it can only be agile and quick to respond if it limits itself to the most essentially shared issues, and doesn't try to play the all-encompassing superstate.

The bigger an institution becomes, the more fragile its inner homogeneity. Political and ideological consensus, without which such a community of states has no real chance of long-term survival, was present for all the new entrants in the past decades. But our current debt crisis showed that economic homogeneity was awry. Of course, not all members can be equally strong economically.

The EU has always accepted economically stronger and weaker states; the weaker were supposed to be helped to rise to the level of the stronger. But this much should surely have been ascertained: whether a candidate for entry could be expected, with the help of the EU, to reach an economic level which would allow it to stand on its own two feet within a reasonable period of time.

II.

Let us leave the examination of the EU's reality aside for the moment. It is evident that the state of affairs in the EU is a sorry one. The idea and the reality are poles apart, and corrections will have to be made above all to the reality if the EU is to achieve what European citizens expect of it. The awkward predicament, however, is that this will require considerable changes to the EU treaties and these are difficult to renegotiate, as they require the assent of all member governments as well as member parliaments.

Of course, it is harder to get 28 member states into one camp than six, particularly when the 28 contain groups with quite different historical experiences. This has obviously been the case since the entry of the former Eastern Bloc countries. For half a century these states had to suffer the pain of handing over their sovereignty to Moscow, and now joining the EU has again forced them to endure sensitive incursions into their sovereignty.

It is entirely understandable that some of their politicians have a highly skeptical attitude to further changes. But in turn, those other states in Europe, which are already prepared for further integration, must have the right to form smaller circles and, for example, throw their combined weight on the scales in world politics. 

The treaties include a specific instrument for this purpose: "enhanced cooperation". This is sometimes perceived with some skepticism as "two-speed integration," but it is one which would allow courageous individual states to move forward and with them advance the integration of the whole -- the same kind of moving forward as the act of founding was for the original six.

All this has only one catch: Enhanced cooperation along these lines requires the permission of heads of state, and this permission has to be unanimous. This is hard to understand. As mentioned before, while there has to be sympathy for the eastern members not wanting to accept further losses of sovereignty, no individual member state of the EU, however small, should be in a position to prevent others from closer cooperation. This is the most serious weakness of the Lisbon treaty.

III.

Another potential threat to European integration is the already excessive production of standards in the EU. Comprehensive law-making can be an indicator of the power of an institution: the great European works of codification in the last century make this case. But it is also a question of what legal substance is being displaced by new laws, and this is especially pertinent when the lawmaker is acting within a strongly expanded territorial framework, when his theme, therefore, is not "modernizing the law," but rather "unifying different legal regions," as of course is the case with the integration of Europe. The incessant, often senseless legislating activity in the bodies of the Union which has led to 60-70,000 printed pages of legislation, is therefore not a sign of abundant creative energy in the EU. Rather, it is a cause, or a contributing cause, of its creative and therefore political weakness.

The process itself is an obvious one. The larger the area to be standardized, the more one has to abstract away from the peculiarities of the individual region and what has been "abstracted away" has to be replaced by armchair decisions and woolly constructs. The process then ends with the citizen affected not feeling understood by the lawmaker and withdrawing his or her trust!

IV.

What is at stake here is nothing less than the democratic substance of the Union. Discussions about the democratic deficit of the EU tend to end with a demand for direct elections for individual roles within the Union, or for expanding the powers of the European Parliament.

While I will not quibble with these demands, there should also be a recognition that beyond individual measures, democracy demands a bond of trust and understanding between the bodies of the Union and the citizens of the Union, and here things are not as they should be. Not least evidence of this is the usual complaint about the "European public" -- the European demos -- having failed to materialize after more than half a century's efforts -- whatever such a polyphonous public might actually look like.

The larger a public institution, the harder it is to create both understanding and trust. If the parliament's powers are too limited, that may be a bad sign for the way EU contracts deal with parliamentarianism, but that is only one element in democracy. At the same time, when citizens of the Union no longer feel they belong, because too much is decided above their heads without knowledge of their aspirations and without empathy for their circumstances, the democratic character of the union is called into question.

'We Will Not Get By in the World with Western Ideas Alone'


V.



Great empires of the past, for example the British Empire, managed very well in their dependencies or colonies by not trying to achieve legal adjustments in every question, to 'standardize' everything from the top to the bottom, but rather by determining centrally the goals to be achieved and leaving the details to be decided on the ground.

Even today the European Community treaties intend something like this through the institution of the directive. According to the treaties, this is supposed to define the goal to be achieved; the method of implementation is left to the individual member states. A truly wise provision! But today's reality looks quite different. Just consider the sheer volume of standardizations in the EU. It is high time the bodies of the EU returned to that model devised by the EU itself and not only in its legislative capacity but in its entire political scope as well. 

But, even so, reducing today's volume of standardizations by a third would be an enormous step forward.

While making this demand, one nonetheless has to bear in mind bad experiences from the past. In implementing EU directives some member states, including Germany, have at times been very lax, and the contractual sanctions provided have proved very blunt weapons in these cases.

This kind of conduct ought not be disregarded or brushed off as meaningless. Nor should it remain unchanged. If the directives were again to be what was originally intended, the member states would only have to meet the Brussels bodies halfway in matters of implementation, perhaps by conceding an automatic implementation clause after a given period of time. The EU itself could then initiate the necessary enforcement for those member states which refuse to process a directive.

VI.

That the budget crisis or, more precisely, the debt crisis of particular EU member states should give rise to calls for control by the bodies of the community is quite obvious, not least because the budgets of other member states will be seriously affected.

What is baffling about such demands is the thoughtlessness with which new and misleading vocabulary is churned out. "EU Finance Minister," "Economic Government" and similar -- and worse. Their inventors skip highhandedly past ancient (one might even say holy) constitutional principles.

Let us not forget that what is at stake are principles which, above all in England, stand at the cradle of parliamentary democracy and, beyond that, the sovereignty of all member states. For in a modern (and comprehensive) economy, he who decides the money automatically decides the politics, which cannot be financed without it. With questions of budgetary control there is indeed considerable danger that their answers can lead to direct conflicts with the core of democratic constitutional life; conflicts which the law deems that parliament and ultimately the constitutional courts are responsible for preventing.

I do not believe that the crisis in which we find ourselves makes it necessary to transfer the right to determine a budget to the European level. According to current experience, only two things matter. These few indexes have to be made binding for all member states. They include upper and also lower limits of the so-called public expenditure quota, the upper limit of state debt, the upper limit of staffing budgets, and the minimum limit of state investment, among others -- all this of course connected with a strict mechanism of control and sanction, which, above all, must function automatically and not depend on decisions by the European Council, the powerful body representing the leaders of the EU member states.

It is evident that we have a whole series of constitutional issues. The opinion held here includes directions towards solutions -- assuming that the EU bodies, as well as all member states, act with sense and fairness. In the German constitutional system this is called federal allegiance, and both sides, the Union and the states, are bound by it.

VII.

There is another area where a strengthening of the EU powers and responsibilities is unavoidable. That is in European foreign policy, which no member state to date has wished to relinquish, but which is becoming an increasingly important part of the EU's global profile and increasingly important for our elusive "European public." The formulation is deliberately reticent here. When there is reference to increasing foreign policy challenges for the EU, this is not meant to refer to everyday diplomacy, but only to the interests and values all EU members share collectively. There is an increasing need for the representation of such interests. 

It will come from two directions.

Firstly, the European bodies of the past half-century will continue to have growing responsibilities for securing international peace. That they are equipped for this is open to doubt. One of Europe's big achievements is that over the past half-century there have been no armed struggles on union soil. 

Yet, the attempt to ensure peace in the European neighborhood has not been so successful and on the world stage, Europe plays a role which bears no relation to its portion of global GNP. Europe will have to do more in the long term.

Secondly, the states which have come together in the EU share -- despite many differences in detail -- the basic foundations of Western political thinking. There is no neat formula from which the rest might flow, and so one generally resorts to individual concepts which together must add up to the essential: basic human rights, freedom and equality, social responsibility, the rule of law, democracy, the separation of powers, et cetera.

At its core is the idea of man or, more precisely, the place of the individual in given, or even freely chosen, collectives, as well as the dignity of man. The short, admittedly inexact formula for this requires that the state be there for the people, and not the other way round.

It is clear these ideas are no longer understood in all parts of the world, indeed, that the majority of people live, and wish to live, according to other ideas. The dispute over the universality (or non-universality) of the rights of man is just one example here. States and blocks of states are growing up around us that are shaped by quite different ideals from those of us Europeans. Naming just the two most obvious, we might look at Islamic states based upon a religion, and China, where side by side with a derivative of state communism the ancient worldview of Confucianism is increasingly emerging.

The lessons from this development have not yet been understood. What is clear is that with only our Western ideas to guide us, we will not get by in the world forming around us. We will struggle even to establish their central points in the world in general; the battle for the principle of universal human rights -- or at least a limited number of human rights -- gives us an idea of how difficult that will be. During these discussions it will be a question of Europe holding on to its own convictions -- convictions, which after all, shape our mental landscape and which have been involved in the gestation of our great scientific, technical and economic successes.

This is an extremely sore point, which is most noticeable in the religious sphere. Europe's greatest problem in relation to Islam lies in the fact the great majority of Muslims are attached to their religion with a passionate devotion, while religion in Europe was initially undermined by the Enlightenment and then moved into a phase of plurality in which the borderlines between tolerance and indifference tend to become indistinct. That is not necessarily a mistake. But it is food for thought that in Europe today there is no longer any devotion to even the secular substitutes of human dignity, freedom, rule of law and democracy comparable to the Muslim state and its religion. It is an unresolved question as to whether the Western combination of democracy and the free market really is the ultimate wisdom or whether perhaps the Chinese model with outward freedom, but inner lack of freedom, is not the better one.

To make a third point: It is worth remembering that European prosperity, whose scientific and technical conditions once spread far and wide under the colonial banner, is threatened by the fact that methods have been adopted by the peoples in developing nations and are now applied against their creators.

VIII.

Much of this was quite different in the 1950s when the European Communities came into being: at the time it was more a question of simple synergies and the removal of potential grounds for war such as competition over coal and steel. The communities and their successors have themselves, to be fair, altered a substantial portion of their tasks. Partly by solving them, and partly by taking on -- and often only partly taking on -- new ones.

Other tasks generally demand organic changes, or at least adjustments, which are usually harder to achieve than mere enlargements. Such changes of purpose have often occurred in history and were always fraught with considerable insecurity and upheaval. In that sense we are not experiencing anything really new. But what is new are several particularly prominent aspects:

1. The evolution of a multipolar world with superpowers and larger blocks of states rather than the traditional states that play key roles,

2. The need to give European values such as the value of the individual resonance in the world insofar as is possible, and to secure their continuance in Europe against threats from within and without,

3. To stabilize the influence of Europe in the world to the extent that Europe can sit at the negotiating table with equal rights and equal weight when the Americans and Chinese discuss the future world order,

4. Increasing, and mostly cheaper, economic competition from developing countries.

These challenges can no longer be met by the governments of the member states alone. Without a European remit they cannot be grasped in a European sense. But here, again, we return to the problem of budgetary controls: an unwieldy foreign policy and diplomatic service in the conventional sense would go way beyond the useful. It would be absurd to imagine the EU keeping its own embassies with the usual functions in the capitals of 200-odd existing states.

An EU foreign policy would have to be practiced in the fashion of traveling and conference diplomacy, as has already been initiated in the sphere of international crisis management. Fixed pillars might be sensible in the form of task forces in those regions where conflicts require swift pacifying, and perhaps also in regions where the common European interest is particularly prominent. So joint responsibility, again, only where it is most suitable.

IX.

Most halfway-engaged citizens of the EU appreciate these tasks, or at least can guess at them. At the same time, they see the sizeable deficits that still remain, and are disquieted by their persistence. They accept that the task is a big one and can't be surmounted overnight. But there is disappointment that very little of what is possible has been tackled, and that where repeated attempts have been made, they have ended up defeated in the crossfire of national interests and petty jealousies. The zeal of civil servants for bagatelles and incidentals does not really improve the mood.

All this may not be an issue of constitutional law, but it is the constitutional question of our time because the opportunity for integration is being gambled away, when it could bind the EU citizen to the EU itself and endow the Union with political power. The idea of nationhood, which for generations has led European nations to astonishing achievements as well as to abhorrent crimes, will not play a role in the EU for a very long time -- Europe doesn't have a nation, not even a "European public," both of which might form the basis of a true democracy.

And the welcome strengthening of the European Parliament of recent years has, when closely observed, served parliamentarianism more than it has served democracy. The parliament is still relatively weak in the face of the European Council and the European Commission; above all, it has not developed the power necessary for setting aside the peripherals and for moving the real problems into focus for the EU bodies. And it is no closer to the citizens than the Council or the Commission. Winning the trust of the citizenry we spoke of above has to be the business of all three leading bodies.