Which powers back to the Member States?

With the White Paper on the Future of Europe, presented on 1 March (here), the European Commission avoids settling on a single reform concept, thus avoiding the danger of causing resistance ahead of the EU Summit in Rome and the 60th anniversary of the Treaties of Rome. Whatever the strategic intent, in terms of content the new White Paper and the distinction it draws between development scenarios can only be welcomed.

We have never before heard this so clearly from the Commission: “More Europe” is not the only option. Scenarios involving the return of selected competences to the Member States (in the White Paper: scenarios 2 and 4) belong as much on the agenda of the urgently needed debate as the options “Continue as before” (scenario 1) and “Much more joint action” (scenario 5). This also applies to the possibility of restricting joint action to groups of states selected on the basis of the given topic (scenario 3). In a debate in which alternatives to the comprehensive centralisation of the EU are often branded with taboo-like allegations of “nationalism” – anyone who is involved in the trade union or social-democratic EU discussions will know what I am talking about – this is major progress.

In essence, the President of the Commission calls in the White Paper for “an honest and comprehensive debate” on a re-distribution of European powers and competences. This sounds attractive indeed, given that critical minds right across the political spectrum accept the assessment that not only are the EU Member States tending to block the EU’s potential for action but also the EU is blocking its own members’ freedom. The re-distribution of powers, including the option of returns of competences to the member states, could help to resolve such blockades. But which competences could or should be given back to the EU members? It is remarkable that even those who claim to be in favour of such rollbacks rarely give convincing examples. Animal health was mentioned by one German newspaper FAZ commentator (here) as a possible policy field from which the EU could withdraw. That could well be the case – but is the problem with the EU really its excessive activity in fields such as animal health?

Let us think about the problem of European competences a little bit more fundamentally. Competences are narrower things than powers. They are authorisations for joint legislation at the European level and subjects of the competence catalogue laid down in the Treaties. Does the European Union have too many of them? And does the EU make comprehensive, even perhaps overly extensive, use of them which tends to go beyond the stipulated remit, thus destroying the democratic discretion of national political systems?

European legislation faces remarkably high consensus hurdles. In order to adopt a European directive, the Commission must exercise its monopoly in the initiation of legislative procedures. Following extensive negotiations, the Council must, if not unanimously, agree to participate by a qualified majority (at least 55% of the Member States representing at least 65% of the EU population), and the European Parliament almost always has to be involved, too. No question, the danger that European legislation will block problem solutions at the Member State level without generating its own added value is not to be dismissed. But national or party groups, who fear precisely this, have good opportunities to block legislation on their part due to the high consensus hurdles. It is, in other words, possible, but not highly likely that European legislation will lead to unacceptable interventions in the legal regimes and the democratic scope of the Member States.

This does not at all imply that illegitimate interventions in the affairs of EU member states do not occur. They systematically occur – but not, however, primarily based on European legislation, but precisely on the instruments with which the EU can circumvent the political systems of both levels. Two instruments stand out in particular: the macroeconomic monitoring and correction procedures introduced in the course of the euro crisis and the over-stretching of the European fundamental freedoms and of European competition law.

The macroeconomic procedures cover the entire gamut of the economic, social and budgetary policies of the Member States, regardless of the division of competences fixed in the Treaties – which implies that any re-distribution of political competences would not help. But also the obvious and understandable demand for a waiver of the new procedures would only scratch the surface of the problem. Indeed, the procedures have a very clear purpose: they are one of the few possible answers to the wide gap between the demanding convergence requirements of the euro on the one hand and the inability of its participants to put them into practice on the other. So anyone who rejects the excessive imbalance procedure because it makes technocratic interventions where democratic choices should take place will have to explain how the convergence demands of monetary union can actually be implemented otherwise – and whether, if there is no alternative, the euro is really worth the price.

The second instrument with which the Commission, particularly in its strategic partnership with the European Court of Justice (ECJ), cuts deep into the economic and social orders of the Member States is the European fundamental freedoms (I leave European competition law aside here). The Commission and the ECJ have converted the fundamental freedoms into general powers which enable deregulation in virtually all areas of policy, from tax policy to collective employment law. Once again, these interventions are taking place irrespective of whether the EU has competences for own legislation in the relevant field. So that here again a rollback of political competences to the Member States would not help at all.

My suggestion is therefore to take a positive view of scenario 4 outlined by the Commission, but to turn it on its head. Usually we would hardly find any proponents of this scenario among, for example, the majority parliamentary groups of the European Parliament. But let us, as progressive Europeans, explain to them that the desirable protection of the democratic scope of the Member States’ political systems does not necessarily have to be at the expense of the EU’s political powers, including those of the EP, but rather at the expense of technocratic European governance.

Even more, the political systems of both levels, including their parliaments, could benefit from a radical limitation of the reach and scope of the fundamental freedoms to the absolute minimum that is required for the functioning of the internal market. National legislators would be freed from the need to anticipate restrictive ECJ decisions in any new lawmaking. The European Parliament could, in its legislation, intensify the process of genuine political deliberation between the European parties – instead of having to give the impression of democratic legislation while in fact merely codifying extensive bodies of ECJ caselaw. That would be worth fighting for.