POMFR : Antonina Bakardjieva Engelbrekt, Xavier Groussot (eds), The Future of Europe: Political and Legal Integration Beyond Brexit (Hart Publishing, Oxford, 2019)
In a time where pessimistic views on the European project largely dominate legal and political scholarship, ‘The Future of Europe: Political and Legal Integration Beyond Brexit’ is a welcome change in perspective. In twelve chapters, the book shows the complexity of the question on the future of Europe. While not all conclusions drawn by the individual authors are positive, they at least offer a realistic picture of which issues will have to be dealt with in the future.
Antonina Bakardjieva Engelbrekt’s and Xavier Groussot’s edited book is the 13th volume in the series ‘Swedish Studies in European Law’ and builds on a conference organized by the Swedish Network for European Legal Studies in November 2017. The volume is divided into four parts, preceded by an introduction by the editors as is common for such collective works. In the latter, Antonina Bakardjieva Engelbrekt and Xavier Groussot set out the framework of the book, whose starting point is the European Commission White Paper of 2017 on the Future of Europe. While reflecting on the same underlying question as the Commission, the book does so from a slightly different angle. It limits itself to focus on three overarching themes, which in the authors’ view are ‘crucial for the sustainability of the European legal and political order’ – Institutional and Constitutional Fundaments of the Union, the Rule of Law and Security as well as the Rule of Law in the Member States. For all these themes, the individual authors, in one way or another, strive to identify conditions for a long-term, sustainable European political and legal integration. In doing so, the Brexit debate has been deliberately left aside to enable meaningful reflections on the future of Europe beyond a single Member State’s decision to leave the Union.
Part I starts by focusing on the institutional fundaments of the EU. In the first substantive chapter, Jürgen Neyer draws lessons from the past for the EU of today. He finds remarkable resemblances between the fall of the ancient Roman Republic, the end of Catholic hegemony, the French Revolution of 1789 and the end of Weimar Republic 1933. All these ‘revolutions’ share four characteristics which Neyer also identifies in the current European construct. To prevent the Union from meeting the same fate as these revolutions, he urges the Union to ‘overcome its one-sided economic bias’ and to create a European political space by strengthening the Parliament. In chapter two, Paul Craig continues to prove that the so often criticized Union’s democratic deficit is the result of Member States’ choices. Historically, Member States never envisaged a democratic EU. At present, they consciously accept the status quo, and for the near future, Craig finds that Member States are unlikely to change the current situation due to four constraints – political, democratic, constitutional and substantive constraints. In chapter three, Graham Butler gives renewed attention to the EU’s flexibility clause in Article 352 TFEU. While the 1970s constituted the heydays of the clause, the 1980s already marked a decline in its use. With the introduction of the Treaty of Lisbon, the clause was expected to be revived but miserably failed to do so. Butler shows that instead, the clause continued to decline. While he does not raise significant hopes as regards the clause’s recovering, he stresses the remaining potential of the clause should the evolution of the EU ever require its need. In chapter four, Xavier Groussot and Anna Zemskova focus on why rights are so resilient in the process of European integration. They observe that there has been a spillover of rights caused by the ‘Ever Closer Union’ clause enshrined in Article 1(2) TEU. More precisely, they find that the CJEU institutionalized the core values of Article 1(2) TEU – unity, diversity, and transparency – in its case law on individual rights. This, in turn, leads them to argue that ‘the effectiveness of EU law is not absolute […] there are situations in which it is accepted that EU law yield and […] national interests should prevail.’
Part II thereupon continues to focus on the Rule of Law and Security. Massimo Fichera starts the discussion in chapter five by unfolding the theoretical question of the constituent power of the EU. He starts with the classical idea that the government receives its authority from the people. For the EU, he defines ‘the people’ as covering both the mobile people – those who move in between Member States – and the people in the plural – by which he wishes to describe the process of creating a European demos. Both aspects of ‘the people’ are, in his view the outcome of ‘a construction of people-as-constituent power through security and fundamental rights discourses.’ He argues that it is precisely through these discourses that ‘the EU pursues a strategy of self-justification and self-empowerment accomplished in the name of the peoples of Europe’ (emphasis in the original).In chapter six, Anna Jonsson Cornell discusses the role of national security as an EU constitutional law concept. She finds that such a concept consists of two separate traits. On the one hand, it is a competence-deciding concept; on the other, it allows for derogations from fundamental rights. By considering both the Schengen and Internal Border Control as well as Data Protection as case studies, she concludes that while national security mainly operated as an accelerator, this might change dramatically in the future due to the shifting focus on that nation state. In chapter seven, Eduardo Gill-Pedro picks up Roberto Esposito’s concepts of community and immunity to reflect on the securitization of the EU’s Area Freedom, Security and Justice. Community for Esposito is a negative obligation towards one another within the community. Immunity, in turn, is the reaction to the threat of the community and thereby an exception to the former’s obligation. Gill-Pedro concludes that the European security agenda resembles a shift from Esposito’s community to immunity. He criticizes that the EU deploys such an ‘immunitarian’ logic in order to protect the very idea of European integration while neglecting meaningful processes by which European citizens could consider themselves as the authors of this integration.
Part III, in turn, focuses on the rule of law in the Member States and provides analyses of European integration from a Finish, Hungarian and Danish perspective. In chapter eight Juha Raitio begins by considering the rule of law in contemporary Finland. He disagrees with the Scandinavian dominant conception, which sees the rule of law as too vague and ambiguous to give it real meaning in legal argumentation. He instead argues for a ‘thick’ concept of the rule of law that should consist of a triangle of democracy, human rights and the rule of law. In chapter nine, András Jakab finds that the systematic disrespect for the rule of law in post-socialist countries is caused by the reliance on formal rules solely, and neglecting informal practices and narratives. He gives a pessimistic outlook for the future, finding that the current Hungarian decision-makers are not interested in changing the status quo. In chapter ten, Ulla Neergaard analyses Denmark’s membership to the EU with all its opt-outs as the prime example of the motto of the EU ‘united in diversity’.
Part IV concludes the book with an Epilogue by Kaarlo Tuori. He focuses in chapter eleven on the relationship between European and Member States constitutionalism and concludes that this relationship is not only characterized by conflict but equally by dialogue. In this vein, he argues that the ongoing legitimacy deficit of the EU can only be solved by ‘strengthening the mechanism of two-stage legitimation.’
In conclusion, it should be said that those who hoped to find an answer to the question of ‘more or less Europe’ will be disappointed by the book, as this very fundamental question is deliberately not dealt with. However, those who look for a more nuanced and realistic analysis of where the EU might head with regards to certain areas – and beyond Brexit – will consider the book a valuable read. The edited volume offers interesting practical as well as theoretical thoughts on Europe’s future. It covers a broad spectrum of themes reaching from constitutional considerations, security aspects to detailed case studies. As often with such collective works, the topics covered are very different in nature, which to some extent makes the book appear like an artificial collection of works only very remotely connected. In light of Bakardjieva Engelbrekt’s and Groussot’s introduction, however, this criticism is largely mitigated as they accomplish to identify the various chapters’ common threads and to present them as falling within one common theme – the future of Europe.
Overall, this book gives an interesting account of the various dimensions that should be considered when reflecting on the Union’s future. It is neither purely optimistic nor pessimistic and essentially lets the reader conclude that the most realistic future of the Union lies in unity through diversity.