The emergent contradiction of Europe’s inter-governmentalism

2015-07-14

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At least since the time of Aristotle, philosophy and science have provided us with a fairly good understanding of emergent phenomena. By “emergent” we mean a certain case’s actuality that is not realisable in each of its constitutive elements. Implicitly predicated on this understanding are such distinctions as, say, micro and macro economics. Take the example of inflation, a quantifiable macro-economic magnitude that is not germane to the behavioural attributes of any given micro-economic agent. In a manner of speaking, inflation is in the nature of the economy as a whole, without being peculiar to any one of its components.

Emergence is the reality that is made manifest in the interoperation of a specific set of factors and their arrangement thereof.

This is realisable in political systems as well. The European Union is one of them. In the present analysis, we will consider the EU’s policy-making modus operandi, in an effort to appreciate its inherent sovereignty mismatch and the contradiction that inevitably arises between national democracy and supra-national technocracy.

This article consists of two sections: (i) the technical parts of the EU’s policy-making framework, and (ii) the theoretical aspects of it.

Ordinary legislative procedure

Following the entry into force of the Treaty of Lisbon, the European Parliament is joint-legislator with the Council of the European Union on most of the EU’s areas of competence. The vast majority of the Parliament’s committees work on legal documents that have binding power on Member States.  As to how the process flows and in the interest of brevity, I refer the reader to Article 294 TFEU (pdf).

Though this appears to be a typical federal formation, it is not. Its limitations can be outlined thus:

• The European Parliament does not initiate legislation, while any of its own-initiative reports are not binding in nature;
• MEPs are elected along national lines, without there being trans-border lists, which means that European citizenship is confined to locality;
• The Council of the European Union is not a genuine “senate” in a bicameral system, for its members are either ministers or, depending on the committee, [unelected] heads of permanent representations to the EU (i.e. “ambassadors”);
• The European Council, which is not a legislative body, is the institution which directs the Commission’s actions, by means of the conclusions it adopts;
• The European Commission is indirectly elected by the Parliament, yet it lacks the executive powers a federal government would, mostly due to the European Council, and other inter-governmental formations, such as the quasi-legal entity of the Eurogroup;
• The supra-national stratum does not have its own fiscal capacity, meaning that it has to rely on whatever Member States agree to be the final amount that will go into the Multiannual Financial Framework.

All of the above are indicative of the Union’s excessive reliance on inter-state relations and the balance thereof. Everything ultimately depends on the inner workings of inter-governmental processes.

So much for the ordinary procedures. The _extra-ordinary _ones are outright intergovernmental, with the bailout packages to countries such as Greece being prime examples. Member States have bound themselves in a single currency, without there being a genuine counter-party European Treasury to the European Central Bank fitted with full fiscal powers, and, most importantly, without having in place a single sovereign with the power to, inter alia, resolve emerging tensions between the parts that constitute the Union by means of automatic fiscal transfers and other stabilisers.

Such is a subpar state of affairs geared for asymmetric shocks, predicated on the erroneous assumption of the optimality of “common rules without common politics”.

Furthermore, this extraordinary sphere of policy-formation is governed by the Fiscal Compact, a Treaty outside the Community acquis, while the fiscal backstop to the single currency, the European Stability Mechanism, is a platform for intergovernmental bargaining, which also happens to have a legal basis outside the EU’s legal corpus. Decisions at the ESM are adopted by unanimity or, in cases of urgency, by a qualified majority of 85% of the votes cast. Just for the record, and without commenting on it, I furnish the table which indicates the weight of each state’s votes in the ESM, as per Annex II of its treaty (pdf).

Sovereignty mismatch

The principle of “no taxation without representation” can be interpreted as a call for matching the state with the people over which it has powers: an alignment of sovereignty. In the EU’s intergovernmental architecture such alignment is absent.

The Union’s sovereignty mismatch is an emergent phenomenon, a reality germane to the EU. Each Member State operates along the lines of modern representative democracy, at least in principle. A sovereign people elects the state’s executive and legislative functions, while remaining the ultimate source of legitimacy as concerns the constitutional order. The constitution is legal by virtue of expressing, of forming, the people’s sovereign will. The people are the constitutional subject.

In contrast, the “constitution” of the EU (the Treaties) stems from the will of Member States. It is, at the very best, an indirect and tacit expression of popular sovereignty. It is accurate to consider it a league of states, a quasi-confederal arrangement, where policy starts from, rests in, and passes through Member States.

As for the various intergovernmental fora/institutions of the Union, it would be a fallacy of composition to conclude that a group of democracies engenders a greater democracy. These are not genuinely democratic for the very specific reason that the extent of their executive power is broader that any given people’s territorial sovereignty.

The “government” of the Union does not rule over an indivisible People of the Union; it rather exercises authority over peoples that happen to enjoy certain common rights/obligations, not least peculiar to European citizenship; whereby “citizenship” entails less than what the concept typically signifies. Substantively, European citizenship is inferior to national citizenship.

What the supra-national stratum of authority lacks, is the natural progression of republican principles from the national level upwards. The democratic processes specific to a nation state are not found at the Union level, at least not in any proper sense. This lack of correspondence suggests a discount in the value of upper-level policy-formation.

The problem is compounded when important powers rest in the hands of entities that are opaque and mostly-to-fully-technocratic. For instance, to change the institutional status of the ECB, there needs to be a Treaty change ratified by all Member States. Compare that to the ordinary procedures of constitutional review inside a nation state.

Solving Europe’s intergovernmental contradiction

Put broadly, there are but two ways to resolve the EU’s fundamental antinomy: (1) to dissolve the Union, or (2) to render it a genuine nation state, predicated on the principles of modern representative democracy. Anything in between, such as the preservation of the status quo and its evolution along the path it already follows, represents a phenomenon that we may label post-republican.

By using the term “nation state” to refer to a European democracy, I do not attempt to propound an ethnicist argument concerning the “identity” of Europeans. I only wish to refer to relatable structures that are already in place and which foster states of affairs that are, from the perspective of democracy, more preferable to the policy outcomes of the Union.

[I consider ethnicism to be egregiously mistaken, not least because of its pseudo-metaphysical understanding of the nation's presence; perhaps a topic for a future blog post]

In conclusion and to express my own desire, I would be willing to sign a “We the People” document that would establish a European Democracy run along federal lines. However, the very clear reality of the present order of the Union indicates that such eventuality is akin to wishful thinking. The EU as is, the way it operates when intergovernmental power relations are all that matters, the expected integrationary trajectory it will follow (as per the report of the five presidents, which I have already analysed), all form a context which offers little room for grounded optimism that a meaningful democratic turn will occur in the foreseeable future.