I’m
delighted that someone (on Open Democracy) has seen fit to try to summarise Perry Anderson’s two
important – but typically over-loqacious – LRB articles about the institutions of the
European Union
Perry Anderson’s essay ‘Ever Closer Union?’ explores
the significance of the different institutions within the European Union. Their
common principle, he finds, is that they minimise democracy, with the leaders
of the most powerful states directing the affairs of the union from within an
impregnable fortress of rules.
Anderson starts with the European Court of Justice, established
in 1952 as part of the European Coal and Steel Community, which evolved into
the European Economic Community and eventually the EU - noting that the first
president of the court was an Italian fascist, the first German judge a
“devoted” Nazi, one of the first advocate-generals another German who was
heavily involved in running occupied France during the war, and the other
advocate-general a Vichy functionary, “in charge of co-ordinating the first
wave of persecution of French Jews”.
Not all appointments to the court were
fascists, but they “were nearly all political” – few had any legal
qualifications.
The second set of appointments
continued this pattern: a politician from Germany’s centre-Right Christian
Democratic Union, the son of a leading Dutch politician, the brother of the
Italian finance minister (and a former aide to the fascist minister of
justice), a one-time Nazi, now Social Democrat, from Germany, an Italian who
had helped administer occupied Rhodes in the war, a French appointee who had
served the military governor of Algeria and a leading light of the French MRP,
another Christian-Democrat party (who at least had a law qualification and had
served as a minister of justice).
This latter, Robert Lecourt, “was an
ardent federalist” who had been a member of the Action Committee for a United
States of Europe, founded in 1955 by the influential European unionist Jean
Monnet. It was Lecourt who “wrote [a] historic verdict overturning a national
law” in a landmark case that a small Dutch company brought against the Dutch
government.
The next year, Lecourt issued the
judgment in another landmark case, brought by two Italian lawyers against their
own government. With these two rulings, “the cornerstone of European justice
was laid”.
After Lecourt became president of the
court in 1967, he was joined as a judge by Pierre Pescatore, brother-in-law of
the Luxembourg prime minister, who was “a more outspoken and prolific champion
of federalism even than Lecourt”, with “one bold judgment after another sealing
the court’s authority over successive aspects of the life of the Community”.
In Pescatore’s view, it was the spirit
of the Treaty of Rome – the 1957 treaty that established the European Economic
Community – rather than “a merely literal reading”, which must prevail. The
court’s initiatives were “celebrated by [Dutch writer Luuk] van Middelaar as
the coup that essentially founded today’s Union”.
Scholars such as Germany’s Dieter Grimm challenge Pescatore: those who drafted the treaties creating the European Coal and
Steel Community and the European Economic Community, he argues, would have
regarded the court’s key decisions as “revolutionary because the principles
they announced were not agreed in the treaties... and almost certainly would
not have been agreed on had the issues been raised”.
The British author Thomas Horsley also doubts the legitimacy of
the court’s power-grabbing work: the
Treaty of Rome granted the Court of Justice judicial oversight only “with
respect to acts of the Union institutions”, not those of member states. The
contrary decisions cannot be claimed to represent the spirit of the treaty when
its text clearly states the opposite, says Horsley: the court “is irrefutably
subject to compliance with EU treaties”.
All-powerful, incomprehensible
In any normal democracy, says Anderson, a court’s decisions are
“subject to alteration or abrogation by elected legislatures. Those of the
[Court of Justice of the European Union] are not. They are irreversible.” It would require a new treaty, signed by every member state, to
overturn an Court of Justice decision – a wholly improbable scenario.
Meanwhile, every decision has constitutional force, such that it must be
reflected in each successive EU treaty, whose consequently extreme length
renders them, in effect, “enormous cryptograms beyond the patience or grasp of
any democratic public”. As the court’s current president said in 1990:
“There is simply no nucleus of sovereignty that the member states
can invoke, as such, against the Community.”
But what of Germany’s ‘basic law’ (Grundgesetz),
supposedly immutable, as administered by the German constitutional court in Karlsruhe?
The judges there have declared that it cannot be overridden by the Court of
Justice of the European Union, but in considering five challenges over the
years have always avoided any actual confrontation.
Horsley criticises the European Court
of Justice not just for its lack of democratic legitimacy but for its weakness
in technical expertise, not least because a court of general jurisdiction is so
wide in its scope that ‘expertise’ has little bearing.
Grimm makes a broader criticism: in
issuing “prohibitions of discrimination against foreign companies” with such
“missionary zeal”, “almost any national regulation could be understood as a
market access obstacle”.
2. The European Commission
In his essay, Anderson turns then to
the European Commission, the ‘government’ of the European Union, which
comprises one politician from each member state, supported by tens of thousands
of civil servants. He starts with its first president:
“Between 1958 and 1964, [Walter] Hallstein presided over a
Commission that was a dynamo of energy in finding ways and means to circumvent
the Treaty of Rome in the higher interests of European unity.”
The commission and its key directorates
– for competition and legal services – were responsible for 80% of the cases
brought before the Court of Justice, so building “an ever more extensive
edifice of European law trumping the rights of national legislatures”: what
Hallstein described in 1964 as “the beginnings of a real and full ‘political
union’”.
It would be another 20 years before an
equally activist president took office: Jacques Delors, “a far more charismatic
and commanding figure than Hallstein”. He oversaw the introduction of the
Single European Act and the drive towards a single currency, embodied in the
Maastricht Treaty.
He also pursued a “solidarity” agenda,
seeing redistribution as part of cross-regional social justice. However, the
scale of the cohesion funds he secured was, Anderson thinks, “little more than
the alms of an instrumental charity”.
Structurally, the enlargement of the
European Union has allocated a commission post to each of the 27 remaining
states, such that a majority, even if representing less than 13% of the EU’s
population, could in theory outvote the commissioners from the six largest
states, representing 70% of that population. But, says Anderson: “Decisions are
always taken by ‘consensus’ – that is, behind a façade of unanimity, under
impulsion or veto of the six major states.”
Commissioners are appointed for
five-year terms and supported by 33,000 permanent bureaucrats, who preside over
the union’s accumulated set of rules, the acquis communitaire,
which has grown from some 2,800 pages at the time the UK joined the European
Economic Community in 1973 to a mammoth 90,000 pages capturing all the behaviour
and norms that a succession of subsequent applicants were required to sign up
to before admission.
Anderson calls it “the most
formidable written monument of bureaucratic expansion in human history”;
together with the 34 “procedures” used within the commission, it makes the
workings of the union virtually impenetrable for normal citizens – though
presumably not for the army of 30,000 registered lobbyists in Brussels, mostly
representing corporate interests.
The acquis – in its
complexity and scope – serves further to consolidate the centrality of the
court and the commission at the expense of member states, along with their
constitutional courts, their diplomats and their civil servants; and it is in a
state of constant expansion.
3. Powerless parliament
As for the
European Parliament – originally a mere ‘Assembly’ – the minor accretions of
power over the decades have scarcely moved the dial in terms of democratic
accountability. The 705 MEPs, supported by a staff of over 7,000, cannot “elect
a government, initiate legislation, levy taxes, shape welfare, or determine any
foreign policy”. In short, concludes Anderson, “it is a semblance of a
parliament, as ordinarily understood, that falls far short of the reality”,
within which political differences become “all but completely invisible”.
Turnout in
European elections has often fallen below the 50% mark; likewise, attendance by
the deputies at parliamentary sessions. Most decisions on legislation are
reached at ‘trilogue’ meetings between representatives of the commission, the
parliament and the Council of Ministers, which comprises ministers from member
states’ national governments. Anderson cites Christopher Bickerton’s book
‘European Integration’:
“Between 2009 and 2013, 81 percent of proposals [from the
commission] were passed at first reading via the trilogue method; only 3 per
cent ever reached third
reading, which is where texts are debated in plenary sessions of the
Parliament.”
Anderson
sees a wide gap between the parliament and those it ostensibly represents.
Eighty per cent of Dutch MEPs supported the draft European Constitutional
Treaty, which was rejected by 62% of Dutch voters in 2005. The previous year,
only 39% of the Dutch electorate had turned out for the European parliamentary
elections; compare that with the 63% who voted against the wishes of their MEPs
on the constitutional treaty.
“The
Parliament,” Anderson says, “is the least consequential component of the Union”
– but at least it supplies a “measure of the legitimation that any
self-respecting liberal order requires”.
4. The European Central Bank
By
contrast, the European Central Bank, created to manage the single currency
under the Maastricht Treaty of 1992, is subject to no accountability other than
the remote prospect of a new treaty. The Eurozone central banks nominate one
member of its governing council each, supplemented by six executives. “Its
proceedings,” notes Anderson, “are secret, its decisions are formally unanimous
[and] no dissent is ever published.”
Although
the economies of the Eurozone countries are very different, this fundamental
factor was disregarded in what Anderson sees as a drive by the promoters of the
euro “to create a currency which would lock those states that adopted it so
close that they would be obliged to follow monetary union with political union”.
In
practice, that political union proved beyond the reach of the Maastricht
negotiations, but its absence has exacerbated the stresses inherent in managing
economies of different sizes, different structures and different levels of
development.
One way of dealing
with these stresses would have been for the bank to issue public debt, but
Maastricht forbade that: such was reserved for member states only. When Mario
Draghi, the bank’s third president, found a way to evade this in order to deal
with a financial crisis within the Eurozone in 2009, his head of research
later told the Financial Times that
“the whole concept of getting around European rules and doing QE [‘quantitative
easing’, or creating money] without calling it QE
was extremely clever”.
Draghi’s
measures were in apparent contradiction to articles 123 and 125 of the 2007
Treaty of Lisbon and were legally challenged. The European Court of Justice
came to the rescue, however, with what Thomas Horsley called “herculean”
contortions.
The
two essays appeared in the London Review of Books in January and are EACH some
10,000 words long. They may now have some restrictions
on their viewing
https://www.lrb.co.uk/the-paper/v43/n01/perry-anderson/ever-closer-union
https://www.lrb.co.uk/the-paper/v43/n02/perry-anderson/the-breakaway
