Is Another Europe possible?

by Danny Nicol, Professor of Public Law at the University of Westminster

ελληνικά

Danny NicolIs the European Union an empty vessel into which any political content may be poured? Can it accommodate not just neoliberal conservatism but also Keynesian social democracy, hard-line greenery and even pro-nationalisation democratic socialism? A new UK campaign, “Another Europe is Possible”, would have us believe this, and is touting for votes in the EU referendum on the basis that the Union can be changed into a more socialistic entity, “not [by] a network of politicians but grassroots activists across the UK”. The same optimism is apparent in the Democracy in Europe Movement 2025 (DiEM 2025) in which Mr Yanis Varoufakis looms large. With the ferocity of tigers protecting their young, these progressives attack those who single out the EU as a hotbed of neoliberalism. ‘Can you name an institution not dominated by neoliberalism?’ argued Marina Prentoulis of Syriza UK at the launch of “Another Europe”: ‘National governments are pushing a neoliberal agenda too’.

It speaks volumes that Syriza, a party implementing austerity at the EU’s behest, is accorded star billing in this supposedly anti-neoliberal venture. Overlooked are the constitutional differences between the EU and most European states. The possibilities for progressive or socialistic advance in any political community depend to a significant extent on the constitutional structure of that entity. If those seeking such advance are serious about achieving a more equal society, they need carefully to weigh up the institutional potential of any given polity. In fact in the context of the European Union there has been no such debate on the British Left. This is hardly surprising. The long record of failure of British socialists may be attributed at least in part to a perennial unwillingness to engage seriously in questions of strategy.

Yet outside the fairyland inhabited by “Another Europe is Possible”, constitutions do matter. Take the USA for example: a country with a constitution which is difficult to amend, save by judicial reinterpretation. Its system of government is famously one of checks and balances, though with normally no check on the Supreme Court beyond its sense of self-restraint. As a result progressivism has been constantly placed at a disadvantage. The New Deal, public healthcare and gun control have all in turn been dogged and retarded by various aspects of the American constitution. However, the US system of government shines as almost a beacon of hope by comparison with EU structures.

Treaty revision

This is because the EU Treaties not only contain procedural protections for capitalism, as is the case in the US Constitution: they also entrench substantive policies which correspond to the basic tenets of neoliberalism.  Let me give a few examples. First, Articles 107-8 TFEU empower the European Commission to vet state aids for their compatibility with the single market. This includes state aids to the public sector. The system also allows private corporations to challenge grants of state aid on competition grounds. Secondly, free movement provisions of the Treaties have been interpreted by the Court of Justice as prohibiting industrial action which “disproportionately” obstructs the free movement of goods, services, capital and workers – see the Viking and Rüffertrulings of the EU’s Court of Justice. Thirdly Article 49 TFEU grants companies the right of freedom of establishment. This includes the right to establish branches and subsidiaries in other Member States. It is difficult to imagine how nationalisation of branches and subsidiaries of companies based in other Member States would constitute a lawful limitation on freedom of establishment. For good measure Article 106 TFEU gives corporations the right to sue governments whenever any public monopoly infringes EU competition rules – including within the NHS.

None of this would matter very much if these provisions were easy to amend or repeal. However, being Treaty provisions, these policies may only be changed by agreement of all Member States. The methods of Treaty amendment are laid down in Article 48 TEU. Under the ordinary revision procedure the Member States must agree by common accord the amendments to be made to the Treaties. Under the simplified revision procedures (used to revise Union policies) the European Council shall act by unanimity. In each case the changes must be confirmed by all the Member States in accordance with their respective constitutional requirements. Crucially, irrespective of which procedure is used, it only takes a single national government to veto treaty change. One would have to await a complete absence of neoliberal governments in order to change the Treaties in a socialistic direction. Such is the stuff of fantasy.

EU legislation and the TTIP

It might be thought that outside the realm of Treaty revision, life for progressives might be easier. With friends in the European Parliament and some in the Council, EU secondary legislation might somehow provide a means of socialistic advance. I am not so confident.

Take the privatisation of public utilities. The socialist position would surely be that Member States should determine the size of their own public sectors. However, the EU liberalisation legislation tends to consolidate privatisation. Nationalising sectors such as gas, electricity, telecommunications and postal services is forbidden by giving rights of market access to corporations.   This prohibits the sort of extension of public ownership brought in by the 1945 Labour government. New public enterprises have to compete with private firms in a capitalist market. But this arrangement is not socialist: it equates to the “competitive public ownership” craved by Anthony Crosland in his efforts to wean the Labour Party onto capitalism after the 1945 era (See C.A. Crosland, The Future of Socialism, London: Constable, 2006).   Publicly owned companies are thereby compelled to act more as if they were private companies, particular when the Treaty provisions on state aids are taken into account. Similar legislation on railways is presently going through the EU institutions.

It might be argued that liberalisation legislation is the product of EU democracy and could be repealed by democratic means. However the Council and European Parliament do not operate in an ideologically-impartial constitutional environment. Whilst the liberalisation measures were enacted by qualified majority voting on the Council, their repeal would be harder to achieve, because of the complication of identifying the correct legal base for any such legislation. Imagine that a national government sought to introduce EU legislation to allow all Member States a free choice over the public or private ownership of their energy, postal, telecommunications and rail sectors. It would have to rely on the Commission – the very architect of EU liberalisation – putting forward a proposal to the Council and Parliament. Furthermore the only legal base which is in any way credible would be Article 352 TFEU which requires the Council to act unanimously. We are back to square one: a single national government can veto socialistic advance.

Another measure which animates socialist circles is the TTIP, the Transatlantic Trade and Investment Partnership currently being negotiated with the USA. There is concern that TTIP will enable companies to sue governments where state measures harm profits.   Assuming TTIP is agreed before the next UK general election, the prospects of the EU discarding it rely on even more outlandish fantasies. Assuming withdrawal is permissible, there is no provision in the TEU and TFEU specifying how the EU goes about withdrawing from a treaty. Would one have to fall back on Article 352 TFEU, with its unanimity requirement, once again allowing a single neoliberal government to save the EU’s adhesion to the TTIP? It may be that the only way to discard TTIP is – horror of horrors – to violate international law, something far easier for a state to undertake than for the EU.

Conclusion

There have always been parts of the British Left which have elected to deny the significance of constitutional provisions in making their strategic choices. Instead they have clung to a belief in spontaneous combustion. With the zeal of born-again evangelistic sects (with whom they have much in common), they convince themselves that the people will somehow rise up from below and sweep aside all obstacles to social justice, including constitutional ones. The passage of decades, even centuries, when this doesn’t happen does nothing to dampen their faith.

Against this backdrop whilst there can be no objection to people pressing to make the EU more left-wing, such campaigners bear the responsibility of explaining how they will achieve their objectives in the face of the requirements of unanimity and common accord. As it presently stands, these requirements make substantial socialistic advance virtually impossible to achieve. Unless those who seek such change face up to the constitutional obstacle that confronts them, the only progressive reforms to materialise will be confined to the realms of their own minds.

source 

2 comments

  1. I’m getting fed up with all these YouTube ads that keep butting in, telling you how great the Euro is, and why we should be voting to stay in Europe come referendum day.
    What does all that noise tell you?
    Someone is very scared…, Cameron is scared, Obama is scared, Merkel is scared, big cartels are scared, bankers most of all are very scared…
    And that is good news, because if something scares these guys it gives me some hope about changing my future and ours for the better.
    The truth is that the Eurozone has never been worse. Since the pseudo currency of the Euro was created all the countries in the EU have become poorer. And the more the politicians try to hide it the more the real truth is getting out.
    Politically what have we seen?
    Fascism in all its glory, the suppression of human rights, economic war and the financial collapse of countries.
    Today, un-elected bureaucrats in Brussels make the laws for European countries. On the outside they all look so respectable, and politically so correct, but underneath they’re all money-whores and fascists really. According to the published reports of 5 EU chairmen they all dream of abolishing the sovereignty of all member states by 2026, substituting all parliaments with one giant central parliament in Brussels, and from what we’ve seen these guys will sacrifice every human and every country to save their own central bank, the Euro, they’ll do anything it takes for the sake of keeping the markets and the bankers happy.
    The chief weapon of this mafia is our ignorance. If only people understood what was really happening there would be a full scale revolt and politicians and bankers would not know where to hide.
    And so they have created a financial system that is very complex and too difficult for the average person to understand.
    “If the people were to ever find out what we have done, we would be chased down the streets and lynched.” – George H.W. Bush to White House reporter Sarah McClendon, 1992
    In fact, today, education in schools and Universities conceals rather than reveals how the world really works so that young people are kept in a perpetual docile state, and don’t ask too many difficult questions. Actually it is the younger generation that need to spearhead the revolution against the present status quo and the older generations must be behind them supporting them and egging them on.
    What are the priorities of politicians today? Is it the well being of the population that they ought to be serving?
    Unfortunately no.
    What we’ve seen is that to save the Euro bankers and the banks must always be bailed out. So taxes are increasing to pay for the recapitalization of banks that are failing or have gambled away our savings. Those who enable these recapitalizations to take place get huge bonuses even though their bank has failed.
    To add insult to injury, what do these banks then do? These same banks that were saved with your money that you had to pay through increased taxation will then sell your mortgages to vulture funds that will then buy off your loans at a fraction of the price 5%-40% and then they will come and foreclose people’s properties, even their first home, and then sell them off in online auctions to make huge profits.
    If the government really wanted to help people it could offer the same terms to those who owe, or even buy off these debts and give the homeowners better terms. But they don’t because they’re in cahoots with the bankers and because their whole system is based on “debtocracy”.
    This is how in Ireland after the austerity measures, we see now that in a country of 4 million, 14,000 people are being made homeless and the municipalities are building emergency shelters for all the homeless. That is the ‘success’ of the Euro… And still we hear the Irish and and British politicians trying to scare people saying that if Britain leaves the EU now, things will be worse for Ireland. What a pack of lies!
    These vultures, the bankers, the corrupt politicians, the media that have been paid to lie to you on a daily basis through radio and TV, these are the types of criminals that the EU supports. But now they are scared, and they should be!
    This is no April’s fool joke.
    Every time you see one of these pro-EU videos, or leaflets that litter your mailbox, just imagine pushing away a very scared big, shiny fat greedy banker who has a sneer on his face and who is trying to steal all of your savings, somebody’s home, – one day could even be yours, that of your children or grandchildren.-
    And, remember, come that referendum day, this June, you’ll go vote, and send these vultures to hell by getting out of the Eurozone, and reclaiming back your own country.
    That will be a giant first step towards freedom from this debtocracy that rules both the UK and the EU.
    We’ll erect the foundation stone of equal justice for all and claim back our sovereignty and our land.

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