Resumen de Still United Despite Diversity?
The motto of the defunct Constitutional Treaty was “United in Diversity”. It was meant to reflect the somewhat paradoxical nature of the European civilization: widely differing states that share some essential qualities. Yet the seemingly never-ending crises that buffet the European construction continue to pose the question whether there is sufficient unity to keep the project from being blown apart? The divisions along the north-south axis have manifested again in the draft budget presented by the Italian government in October 2018 and rejected, for the first time ever, by the European Commission. At the time of writing, the Italian government stands steadfastly behind its draft, while the Commission holds that the rejection was the only available course of action under the commonly agreed rules.
At issue is the draft budgetary plan submitted by Italy under art.6(1) of Regulation 473/2013 on enhanced monitoring of budgetary policies in the euro area. The Council and the European Council had earlier issued recommendations to Italy under the Stability and Growth Pact. The detail of these recommendations was informed by the country’s high public debt, which stands at more than double the 60 per cent reference value of the Treaty. The draft budget of the new Italian government does not comply with those recommendations, or with the commitments Italy had presented before the new government took office. It includes items such as a rollback of pension reform and the creation of a citizenship income that stretch public finances. The Commission therefore requested the submission of a suitably revised budgetary plan under art.7(2) of the Regulation. If Italy fails to comply, it faces being struck by the preventive and corrective arms of the Stability and Growth Pact, potentially resulting in sanctions such as a deposit of 0.2 per cent of GDP which may be converted to a fine.
There are different aspects to this conflict. At one level, it seems like a clash between a government seeking to fulfil its democratic mandate and a technocratic institution seeking to uphold a set of rules that are often described as obscure and arcane. Yet the rules, as obscure and arcane as they may be, and the recommendations based on them were commonly agreed. On a broader level, they reflect a democratic European consensus that goes beyond a single Member State. As a result, the Italian government is not facing just the Commission: there is a coalition of Member States that is urging action. The uncomfortable role that the Commission has to play is an intermediary in a conflict between states and societies that have different views of how economies should be managed. If it were to bow to the will of a populist government of the South, it would certainly provide grist to the mill of the populists in the North.
A few days earlier in October 2018, the divisions along the east-west axis manifested themselves at the Court of Justice. The Commission has taken various steps against Poland on the issue of rule of law. The most recent clash concerns the composition of the Supreme Court of Poland. The Commission requested the Court to order Poland to halt its measures. The Vice-President of the Court provisionally granted all the Commission’s requests.
At issue is the new Polish law that lowers the retirement age of the judges of the Supreme Court to 65. This has resulted in a forced retirement of a significant number of sitting judges. The President of the country has the power to extend the service of a judge, but can do so at his discretion without being bound by any criteria. At the same time, the number of judges has been increased and judicial vacancies advertised. To many, this looks like a purge followed by court-packing.
Again, the conflict has different aspects. The Polish government says it is seeking to fulfil its democratic mandate by reforming the judicial system that is a remnant from the communist times. On the other side is the Commission, seeking to ensure that Poland abides by the rules enshrined in art.19 TEU and art.47 CFR that ultimately reflect the rule of law the Union is built upon. Again, the Commission does not stand alone. Many Member States share and support its concerns. Yet Poland is not alone either—it has allies, especially among some of the eastern Member States. So far this has stymied the efforts to deal with the conflict via the political route under art.7 TEU procedure and forces the issue into the judicial channel. Again, the Commission and the Court find themselves as intermediaries. This time the conflict is between the different views of what a victor in elections is allowed to do. Liberal democracies of the West hold that checks and balances that protect the minority from the majority must be upheld. Those rejecting the liberal idea claim to channel the will of the people that must be allowed to rule unconstrained.
The function of European law in these conflicts is to transform naked clashes to processes governed by procedures and rules. The European institutions become the antagonists, instead of national governments facing off each other. The success of the system depends on the participants playing by the rules and respecting the common institutions. So far, this has worked at least to a degree—for example, Poland has promised to abide by the Order of the Court. Yet it is easy to attack and vilify the EU institutions. Worryingly, this kind of tactic seems to carry electoral benefits rather than costs: in Italy, opinion polls show a surge of support for the hard right Lega. In Poland, the ruling party was not punished in the recent regional elections. There are also questions concerning the effectiveness of the Union’s response mechanisms: how realistic and useful are fines, and is it possible to rely on art.7 TEU in practice? The broader question for the integration project is whether the diversity is starting to overwhelm the unity. How long can the Union survive open challenges to its central policies and most fundamental rules from large Member States? At the conflict’s heart is the difficulty of accommodating integration, national sovereignty and mass politics at the same time.
For the moment, the greatest practical danger is one of contagion, and it is this that the Union must combat. Italy is already being punished by the markets. If the market reactions were to spread to countries following sound policies, the EU must be ready to unleash its admittedly incomplete arsenal of support mechanisms in their aid. If Poland were to demonstrate that the rule of law procedures are all bark and no bite, other governments will take note and may act accordingly. This the Union would not survive.
