The mounting dislocation of EU law

In a noteworthy recent analysis, Margaret Macmillan affirmed that Europe will hold fast against populism. “Respect for the rule of law will overcome any chance of a return to the Weimar era”. (FT, 21 October 2016). As much as I respect (intensely) her analysis of the past, I beg to differ about the present.

(Photo credit: Wikimedia Commons)

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The mounting dislocation of EU law 

In a noteworthy recent analysis, Margaret Macmillan affirmed that Europe will hold fast against populism. “Respect for the rule of law will overcome any chance of a return to the Weimar era”. (FT, 21 October 2016). As much as I respect (intensely) her analysis of the past, I beg to differ about the present.

As far as EU law is concerned, there are on the contrary multiplying signs of a loss of respect. A good illustration was provided at the end of 2015. The Member States approved then the sharing of some 160.000 refugees between them. This was brand new, and highly sensitive. Though the EU possesses some competence in this area since the Maastricht Treaty, this was the first measure of this kind (related of course to the exceptional wave of refugees in 2015). This was not however the biggest innovation ; it was that two governments declared thereafter that their country would not apply the measure. (In fact, the whole system proved excruciatingly slow in its application : in March 2016 6.600 places had been identified and 660 persons relocated on 160.000, which is another sign of diminishing respect).

Divergences of interpretation in law are of course nothing new, and so are actions in annulment in front of the European Court of justice against the EU institutions’ decisions (some of them were as a matter of fact introduced concerning the refugees measures). All this is perfectly legitimate. What is less legitimate is for authorities to indicate that they are not going to abide by the law. It is interesting to notice that such indications have been multiplying during the last year.

For example, after the 23 June 2016 Brexit referendum, a new UK minister indicated that the government would begin to negotiate trade agreements with third countries. As long as the UK belongs to the European Union, trade policy is an exclusive competence that has been transferred to the EU (and enlarged by the Lisbon Treaty). National authorities are thus forbidden to open such negotiations. In another context, a member of the French government suggested that France could decide not to apply the directive on posted workers. Most recently, the Italian Prime Minister indicated that the Commission’s position would change nothing about the Italian draft budget. (To be fair, this general drift does not spare the various Belgian authorities, in spite of many proclamations.) More generally, in a context of mounting immigration and terrorism, a lot of political positions tend to explore the limits of non discrimination as well as the rule of law.

These problems are growing in number and scale, because they touch now the principles of EU cooperation. In some Member States, the government has now entered into frontal conflict with the national judicial authorities about their independence. These authorities are essential executors of EU law, covered by the Charter of fundamental rights. This evolution thus creates new frictions with EU law. Still more fundamentally, we see now the organisation of national referenda and more proposals of them (see for example the multiplication of topics in the launch of the French presidential elections). These referenda do not concern only, as in the past, the ratification of new treaties. They sometimes aim to contest, implicitly or explicitly, some EU regimes or decisions (EMU, Schengen, refugees…).

The European Commission, guardian of the Treaties, sees obviously this threat. Recently, Commissioner Timmermans declared to the European Parliament : “Europe cannot live without the rule of law”. This evolution is indeed a bigger threat than the refugees crisis, or the Brexit crisis, or the euro crisis, because it strikes all areas of EU activity. However, the Commission has generally remained extremely careful until now about this threat.

All this creates big risks for our legal systems. If a government chooses to disrespect EU obligations, it is already dangerous but judicial remedies still exist, both at the national and EU levels. In case of referendum, there can be a direct collision between the (possibly negative) will of a national population and EU obligations. This could bring extremely dangerous considerations about the limits of sovereign popular will. It is far from clear that the EU could easily resist such a collision.

Even without such a paroxysm, the present trend diminishes the strength of EU law everywhere. This has heavy costs, since it reduces the legal stability for enterprises (and thus hinders investment). Interestingly, the IMF confirms this when it indicates that the biggest risks now for our economies are political ones. The trend also diminishes the solidarity between the Member States. Why show solidarity when your partner does not abide by the common rules ? We could see that feeling emerge quickly, for example, in the next negotiations concerning the euro, the financial perspectives, or even defense guarantees and commitments.

In fact, we live in more dangerous times. The present context, precisely, resembles a lot the 1930s : economic destabilization after a huge financial crisis, increased political and social polarization, and mounting international tensions. At the end, returning to the Weimar era or not will depend a lot, one suspects, on doing better than in the 1930s. This would require the Member States to improve their cooperation and first to develop productivity, growth, and possibly the sharing of their benefits. Otherwise, inspired by William Booth, it would be wise to remember that the rule of law’s love risks strongly being like God’s love ; “You cannot warm the hearts of people with it if they have an empty stomach and cold feet.” Margaret Macmillan is certainly much more qualified than I am to find good illustrations of this in the past.

Franklin DEHOUSSE

Professor at the University of Liège
Former Special Representative of Belgium
Former judge at the Court of Justice of the European Union
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