Lots of (virtual) ink has been spilled trying to describe the “true” nature of the European Union. In what follows, I shall present you with an overarching argument that form follows function. Accordingly, it is, I shall argue, irrelevant if the EU is a “super-state”, a “federal union”, or a “confederacy”; the one thing that matters here is the question: how does “Brussels” influence and change politics, policies, and constitutions in the bloc’s member-states?
A decade ago, pro-EU arguments came with a warm sense of Europeans having—finally, after two world wars—learned the proverbial lessons of history. Take, for instance, The Economist pointing to the Holy Roman Empire, or former British diplomat Robert Cooper alluding to the positive experiences of Austria-Hungary in Eurozine.
More recently, however, these sentiments have seemingly fallen out of fashion within leading Anglo-American and transatlantic circles, if Matthew Karnitschnig’s singularly misleading article in Politico is any guide.
Writing in summer 2023, and without consideration of recent historical research (which takes an increasingly positive view of the late Habsburg Empire), Karnitschnig single-handedly declared roughly half a century of scholarship irrelevant and all positive views on the late Austro-Hungarian empire wrong. The lessons of history from a decade ago were apparently wrong, which therefore begs the question: what is the nature of the European Union?
However, what unites these seemingly disparate elements and meandering lines of thought is not that they invariably invoke whatever historical precedent will enable scoring some cheap political points. In fact, these articles are full of nostalgic allusions that evoke the golden era of homeland movies (Heimatfilme) like Sissi, the 1950s hit in which actress Romy Schneider iconically embodied the Austrian Empress Elisabeth.
They also contain many questionable conclusions: “What was unique in the Habsburg zone was that it enabled the small nationalities to survive, keep their culture, some level of autonomy, and even to thrive with it”, as Robert Cooper asserts. These nostalgic portrayals of past kingdoms serve but one aim: to sell the elitist and anti-citizen project of “European integration”. This goal, though, comes with a twist, for the target audience of high-brow outlets like The Economist or Eurozine is not the citizenry-at-large, but the much smaller segment of Eurocrats, party members, and associates in the bloc’s various member-states, their fellow travellers in legacy media, business elites, and academia. While the “average Joe” might balk at the mixed messages employed by “The Experts™”, no criticism is to be expected from those white-collar professionals who benefit the most from the European Union. Moreover, none of these sentiments convey much, if any, explanatory power as to how the EU bloc really works.
“Transposition”, or: What’s in a Word?
To shed light on the ways and means employed by the makers of EU “Law”, we now turn to an insightful article by Bernard Steunenberg and Mark Rhinard, which appeared in European Political Science Review in 2010. In “The Transposition of European Law in EU Member States”, the two authors provide crucial insights into what exactly happens “between process and politics”.
What, then, is “transposition”, you might ask? The term refers to what happens “when the member states of the European Union (EU) agree on a new directive”: “For a directive to become ‘law in action’, member states must transpose it into national law before national or subnational administrations and agencies can apply the new rule… Without proper transposition, a directive will not be fully integrated into the national legal order, and the acquis communautaire risks becoming fragmented and unevenly applied”.
Translated from Academese-Eurocrat vocabulary, this means that EU law functions thus: the EU Commission issues a new “directive” (which in non-Western countries is called a “decree”, except for the US where the term “executive order” is used), the content of which must then be aligned with, and integrated into, national legislation of the various member-states within a set period of time. This is meant by the term “transposition”, and it explicitly refers to national legislatures or even constitutions adapting existing laws or introducing new ones, that allow for the implementation of the “directive” issued by the EU Commission.
Problems with EU procedures then arise from the delays in “transposition”, as well as a range of other hiccups. Steunenberg and Rhinard hold that “many member states have cases in which legislation was not transposed, or in the Commission’s view not correctly transposed, sometimes exceeding the EU mandated deadlines by more than 2 years”. I highlighted a seemingly innocuous part of this sentence to indicate the age-old problem with power hierarchies: who watches the watchers?
International Relations scholars view such “noncompliance” as “either a state’s general unwillingness to act or a lack of administrative capacity to act”. We note the subversive qualities of this definition. A state is either “unwilling” or unable to implement the EU’s directives as determined by the Commission.
Let us not mince words here: seen from Brussels, “unwilling” is rhetoric used to push for the suspension of the separation of powers (the executive, legislative, and judicial branches of government), which is the default mode of democratic governance in sovereign national states.
And this is done by Brussels because the Commission expects its directives to be correctly implemented irrespective of any objections emanating from any branch of member-state governments. This is, frankly, wrong on many levels, and a direct intervention into domestic constitutional arrangements that makes a mockery of popular sovereignty.
Another interpretation highlights the “mismatch” between norms and practices deriving from different “ideas about policy” (read: disagreements about the substance of any such directive). Here, the authors indicate that there is but one “correct” way of thinking about EU policy, straying from which may lead “to delay or misapplication of European law”.
Consequently, Steunenberg and Rhinard point to “domestic opposition” and its “different views…regarding a preferred regulatory regime”, which then lead to “‘legislative’ or ‘bureaucratic’ drift when lower-level policy actors deviate from the policy specified in the directive”. In this third notion, the authors betray the true sentiments involved: national legislatures are deemed “lower-level policy actors” who “deviate” from the EU-issued “directive”. Let that sink in for a moment: at the level of the various member-states, there is no more politics, still less legislating, permitted by the “regulatory regime” that derives its authority from the various EU treaties currently in force.
National governments entered the EU knowing that whatever they promised to their electorates would be essentially meaningless and in reality subject to none-too-theoretical changes by the EU Commission at a future date.
Courtesy of yet another website of the European Union on “types of EU law”, one may also learn what is meant when the term “law” is invoked: “There are two main types of EU law—primary and secondary”. We further learn that, in Eurocratese, “treaties are the starting point for EU law and are known in the EU as primary law”, while “the body of law that comes from the principles and objectives of the treaties is known as secondary law; and includes regulations, directives, decisions, recommendations and opinions”.
Another website explains that “regulations and decisions become binding automatically”, while “directives…must be incorporated by EU countries into their national legislation” within a set period of time, typically two years. Put succinctly, national governments entered the EU knowing that whatever they promised to their electorates would be essentially meaningless and in reality subject to none-too-theoretical changes by the EU Commission at a future date, including specifically for issues that are theoretically protected by any member-state’s constitution.
The EU’s “Democratic Deficit”: A Feature, not a Bug
If, at this juncture, you’re thinking, “wait a moment, that’s not how my country’s constitution is supposed to work”, you are of course correct. That sentiment, however, is also irrelevant, for these technical details are found in other multinational institutions, too. Any such arrangement, be it the UN, the WTO, the WHO, or the IMF-World Bank cabal, includes the transfer of certain constitutional prerogatives to a supranational entity in question. However, so far it is only the EU whose Commission has the prerogative to change the constitutional, legal, and regulatory set-up of member-states by decree.
In the olden pre-EU membership days, the citizens elected representatives who, assembled in a parliament, promulgated laws to be executed by the government and double-checked by the judiciary. In this brave new world of ours, by contrast, the EU Commission, technically the “guardian of the EU treaties”, issues regulations, decisions, and directives that, as a matter of course and EU “Law” as defined above, either apply automatically or must be “transposed” into national law.
If we applied the EU’s own definitions of “primary” and “secondary” law, we clearly see that whatever the EU Commission decrees must be incorporated by the various national legislatures, either automatically or via changes in the national laws of member-states, including constitutional arrangements.
This situation differs fundamentally from how Western societies after the Second World War used to function, however imperfectly the various national arrangements worked in practice. And while these older arrangements were not without their own idiosyncrasies, they were at least grounded in the principle of (state) sovereignty as it emerged over the past three or four centuries and was enshrined in the UN Charter in 1945.
Hence, even if one accepts the arguments by Christopher Bickerton and Lee Jones about the EU’s “democratic deficit” and, more pertinently, about how “member-states think”, the status quo is clearly contradictory, unprecedented outside various historical (or present) forms of vassalage, and fails to provide answers to the most pressing issue athand: if “member-statehood” is different than “nation statehood”, as Bickerton argued, can there by anything else but foreign, imperial, or otherwise imposed rule? The flip side of any such argument is the impossibility of citizenship, if only because it presupposes certain participatory qualities, which the EU clearly lacks.
The peoples of the EU member-states have become effectively disenfranchised by their (sic) own governments that advocated for, and continue to push to “deepen” what they call “European integration”.
Thus, the particularly appalling linguistic contortions employed by the EU treaties suddenly become intelligible: claims that the EU’s actions are based on “the rule of law” are revelatory, for by “law” is meant, in the above-related sense of regulations, decisions, and directives, whatever the EU Commission deems fit.
At the same time, the peoples of the EU member-states have become effectively disenfranchised by their (sic) own governments that advocated for, and continue to push to “deepen”, what they call “European integration”. In this process, the combination of how “the rule of law” comes into being and the de facto abolition of meaningful parliamentary oversight at the level of the member-states’ renders discussions about the EU’s “democratic deficit” a fairground sideshow at best.
Europeans still go to the polls, but given this framework, it is hardly surprising that the outcome of elections matters less over time. Pro-EU advocacy, as the appalling record of Austrian EU accession shows, was based on outright lies and subsequent changes to earlier legislation. Those old enough to remember the early 1990s might recall that this bill-of-goods was sold by politicians as a fast lane to prosperity and security. Recent events, in particular the personal avarice of Ursula von der Leyen, her political failures, executive incompetence, and moral shortcomings (which were all on display during her tenure as German Defence Minister before she fell upwards), chip away at whatever legitimacy the EU still has.
With anti-EU sentiment rising, it is only a matter of time before the above-discussed crucial and highly subversive matters will make it into mainstream reporting and society. Once more of the EU’s citizens-turned-subjects learn these facts, sentiments akin to those that led to Brexit will certainly keep rising further and faster. Winds of change are to be expected in the near term.
