Can Europe Make It?: Analysis

How all-powerful institutions keep Europe in gridlock

The European Union’s ruling bodies have always shamelessly grabbed power to themselves and away from the people – but this has left the bloc stuck

This article is a summary of the second of three lengthy essays about the European Union by the historian Perry Anderson, published in the London Review of Books.

David Elstein
14 March 2021, 8.00am
Fortresses of rules: the European Court of Justice and European Parliament
frantic/Alamy Stock Photo. All rights reserved

Perry Anderson’s essay ‘Ever Closer Union?’ explores the significance of the different institutions within the European Union. Their common principle, he finds, is that they minimise democracy, with the leaders of the most powerful states directing the affairs of the union from within an impregnable fortress of rules.

Anderson starts with the European Court of Justice, established in 1952 as part of the European Coal and Steel Community, which evolved into the European Economic Community and eventually the EU.

Anderson notes that the first president of the court was an Italian fascist, the first German judge a “devoted” Nazi, one of the first advocate-generals another German who was heavily involved in running occupied France during the war, and the other advocate-general a Vichy functionary, “in charge of co-ordinating the first wave of persecution of French Jews”. Not all appointments to the court were fascists, but they “were nearly all political” – few had any legal qualifications.

The second set of appointments continued this pattern: a politician from Germany’s centre-Right Christian Democratic Union, the son of a leading Dutch politician, the brother of the Italian finance minister (and a former aide to the fascist minister of justice), a one-time Nazi, now Social Democrat, from Germany, an Italian who had helped administer occupied Rhodes in the war, a French appointee who had served the military governor of Algeria and a leading light of the French MRP, another Christian-Democrat party (who at least had a law qualification and had served as a minister of justice).

One bold judgment after another sealed the court’s authority over successive aspects of the life of the community

Perry Anderson

This latter, Robert Lecourt, “was an ardent federalist” who had been a member of the Action Committee for a United States of Europe, founded in 1955 by the influential European unionist Jean Monnet. It was Lecourt who “wrote [a] historic verdict overturning a national law” in a landmark case that a small Dutch company brought against the Dutch government.

The next year, Lecourt issued the judgment in another landmark case, brought by two Italian lawyers against their own government. With these two rulings, “the cornerstone of European justice was laid”.

Letter or spirit?

After Lecourt became president of the court in 1967, he was joined as a judge by Pierre Pescatore, brother-in-law of the Luxembourg prime minister, who was “a more outspoken and prolific champion of federalism even than Lecourt”, with “one bold judgment after another sealing the court’s authority over successive aspects of the life of the Community”. In Pescatore’s view, it was the spirit of the Treaty of Rome – the 1957 treaty that established the European Economic Community – rather than “a merely literal reading”, which must prevail. The court’s initiatives were “celebrated by [Dutch writer Luuk] van Middelaar as the coup that essentially founded today’s Union”.

Scholars such as Germany’s Dieter Grimm challenge Pescatore: those who drafted the treaties creating the European Coal and Steel Community and the European Economic Community, he argues, would have regarded the court’s key decisions as “revolutionary because the principles they announced were not agreed in the treaties... and almost certainly would not have been agreed on had the issues been raised”.

The British author Thomas Horsley also doubts the legitimacy of the court’s power-grabbing work: the Treaty of Rome granted the Court of Justice judicial oversight only “with respect to acts of the Union institutions”, not those of member states. The contrary decisions cannot be claimed to represent the spirit of the treaty when its text clearly states the opposite, says Horsley: the court “is irrefutably subject to compliance with EU treaties”.

All-powerful, incomprehensible

In any normal democracy, says Anderson, a court’s decisions are “subject to alteration or abrogation by elected legislatures. Those of the [Court of Justice of the European Union] are not. They are irreversible.”

It would require a new treaty, signed by every member state, to overturn an Court of Justice decision – a wholly improbable scenario. Meanwhile, every decision has constitutional force, such that it must be reflected in each successive EU treaty, whose consequently extreme length renders them, in effect, “enormous cryptograms beyond the patience or grasp of any democratic public”. As the court’s current president said in 1990: “There is simply no nucleus of sovereignty that the member states can invoke, as such, against the Community.”

Almost any national regulation could be understood as a market access obstacle

Dieter Grimm

But what of Germany’s ‘basic law’ (Grundgesetz), supposedly immutable, as administered by the German constitutional court in Karlsruhe? The judges there have declared that it cannot be overridden by the Court of Justice of the European Union, but in considering five challenges over the years have always avoided any actual confrontation.

Horsley criticises the European Court of Justice not just for its lack of democratic legitimacy but for its weakness in technical expertise, not least because a court of general jurisdiction is so wide in its scope that ‘expertise’ has little bearing.

Grimm makes a broader criticism: in issuing “prohibitions of discrimination against foreign companies” with such “missionary zeal”, “almost any national regulation could be understood as a market access obstacle”.

The commission’s edifice

In his essay, Anderson turns then to the European Commission, the ‘government’ of the European Union, which comprises one politician from each member state, supported by tens of thousands of civil servants. He starts with its first president: “Between 1958 and 1964, [Walter] Hallstein presided over a Commission that was a dynamo of energy in finding ways and means to circumvent the Treaty of Rome in the higher interests of European unity.”

The commission and its key directorates – for competition and legal services – were responsible for 80% of the cases brought before the Court of Justice, so building “an ever more extensive edifice of European law trumping the rights of national legislatures”: what Hallstein described in 1964 as “the beginnings of a real and full ‘political union’”.

It would be another 20 years before an equally activist president took office: Jacques Delors, “a far more charismatic and commanding figure than Hallstein”. He oversaw the introduction of the Single European Act and the drive towards a single currency, embodied in the Maastricht Treaty.

Decisions are taken behind a façade of unanimity, under impulsion or veto of the six major states

Perry Anderson

He also pursued a “solidarity” agenda, seeing redistribution as part of cross-regional social justice. However, the scale of the cohesion funds he secured was, Anderson thinks, “little more than the alms of an instrumental charity”.

Structurally, the enlargement of the European Union has allocated a commission post to each of the 27 remaining states, such that a majority, even if representing less than 13% of the EU’s population, could in theory outvote the commissioners from the six largest states, representing 70% of that population.

But, says Anderson: “Decisions are always taken by ‘consensus’ – that is, behind a façade of unanimity, under impulsion or veto of the six major states.”

Commissioners are appointed for five-year terms and supported by 33,000 permanent bureaucrats, who preside over the union’s accumulated set of rules, the acquis communitaire, which has grown from some 2,800 pages at the time the UK joined the European Economic Community in 1973 to a mammoth 90,000 pages capturing all the behaviour and norms that a succession of subsequent applicants were required to sign up to before admission.

Anderson calls it “the most formidable written monument of bureaucratic expansion in human history”; together with the 34 “procedures” used within the commission, it makes the workings of the union virtually impenetrable for normal citizens – though presumably not for the army of 30,000 registered lobbyists in Brussels, mostly representing corporate interests.

The acquis – in its complexity and scope – serves further to consolidate the centrality of the court and the commission at the expense of member states, along with their constitutional courts, their diplomats and their civil servants; and it is in a state of constant expansion.

Powerless parliament

As for the European Parliament – originally a mere ‘Assembly’ – the minor accretions of power over the decades have scarcely moved the dial in terms of democratic accountability. The 705 MEPs, supported by a staff of over 7,000, cannot “elect a government, initiate legislation, levy taxes, shape welfare, or determine any foreign policy”. In short, concludes Anderson, “it is a semblance of a parliament, as ordinarily understood, that falls far short of the reality”, within which political differences become “all but completely invisible”.

Turnout in European elections has often fallen below the 50% mark; likewise, attendance by the deputies at parliamentary sessions. Most decisions on legislation are reached at ‘trilogue’ meetings between representatives of the commission, the parliament and the Council of Ministers, which comprises ministers from member states’ national governments. Anderson cites Christopher Bickerton’s book ‘European Integration’: “Between 2009 and 2013, 81 percent of proposals [from the commission] were passed at first reading via the trilogue method; only 3 per cent ever reached third reading, which is where texts are debated in plenary sessions of the Parliament.”

Anderson sees a wide gap between the parliament and those it ostensibly represents. Eighty per cent of Dutch MEPs supported the draft European Constitutional Treaty, which was rejected by 62% of Dutch voters in 2005. The previous year, only 39% of the Dutch electorate had turned out for the European parliamentary elections; compare that with the 63% who voted against the wishes of their MEPs on the constitutional treaty.

“The Parliament,” Anderson says, “is the least consequential component of the Union” – but at least it supplies a “measure of the legitimation that any self-respecting liberal order requires”.

Private banking

By contrast, the European Central Bank, created to manage the single currency under the Maastricht Treaty of 1992, is subject to no accountability other than the remote prospect of a new treaty. The Eurozone central banks nominate one member of its governing council each, supplemented by six executives. “Its proceedings,” notes Anderson, “are secret, its decisions are formally unanimous [and] no dissent is ever published.”

Although the economies of the Eurozone countries are very different, this fundamental factor was disregarded in what Anderson sees as a drive by the promoters of the euro “to create a currency which would lock those states that adopted it so close that they would be obliged to follow monetary union with political union”.

In practice, that political union proved beyond the reach of the Maastricht negotiations, but its absence has exacerbated the stresses inherent in managing economies of different sizes, different structures and different levels of development.

One way of dealing with these stresses would have been for the bank to issue public debt, but Maastricht forbade that: such was reserved for member states only. When Mario Draghi, the bank’s third president, found a way to evade this in order to deal with a financial crisis within the Eurozone in 2009, his head of research later told the Financial Times that “the whole concept of getting around European rules and doing QE [‘quantitative easing’, or creating money] without calling it QE was extremely clever”.

Draghi’s measures were in apparent contradiction to articles 123 and 125 of the 2007 Treaty of Lisbon and were legally challenged. The European Court of Justice came to the rescue, however, with what Thomas Horsley called “herculean” contortions.

Nations and members

Anderson judges Christopher Bickerton’s book ‘European Integration’ “the most fundamental of all works on the EU of the past decade”, and emphasises its subtitle: ‘From Nation-States to Member States’. He quotes:

The concept of member state expresses a fundamental change in the political structure of the state, with horizontal ties between national executives taking precedence over vertical ties between governments and their own societies.

To Anderson, the significance of this transition is that it coincided with – or reflected – a parallel shift towards deregulation and market liberalisation across the EEC nations, allowing the passage of the Single European Act in 1986. Thereafter, any popular resistance to the social consequences of these changes – unemployment, wage deflation, welfare cutbacks – could be deflected by reference back to decisions of the European Community and the European Court of Justice. Bickerton again: as member states,

national governments seek to limit popular power by binding themselves through a set of external rules, proceedings and norms: a way of separating popular will from the policy-making process.

Even as the constraints of Eurozone membership forced several member states, most notably Italy and Greece, into unwelcome austerity measures, these pressures were formalised in the Fiscal Compact of 2012, labelled by Anderson as a “spectacular constriction of popular sovereignty”.

But at least the national leaders who meet at the European Council every two months can flex their muscles on the various crises they must address, externally and internally. It is in this council that the realities of power are – indirectly – observed. Although all 27 states are nominally equal, their actual disparity in size means that Germany and France dominate proceedings and outcomes.

“Simply,” notes Anderson, “no proposition that is not to their liking has any chance of passage, while any proposition behind which they unite with force may be inflected, but will not be resisted, by the other two dozen or so states of the Council.”

He adds that Brexit has further underlined those realities: there will be no more vetoes like the UK’s of the Fiscal Compact (which was any way bypassed by creating a treaty outside the structure of the EU).

What’s the EU good for?

As for the grander claims of the union: “After 1945 there was never any risk of another outbreak of hostilities between Germany and France, or any of the other countries of Western Europe,” says Anderson. The Cold War precluded such and the creation of NATO, two years before the European Coal and Steel Community, rendered “the whole region an American security protectorate”. The Balkan conflicts were actually aggravated by EU disagreements, he argues. EU commitments to human rights were hard to spot when the US sought co-operation on renditions and “EU members complied with assistance with kidnappings and supply of torture chambers on Union soil”.

After the initial humanitarian response from Germany – the ‘Merkel million’ – refugee policy became essentially a security issue. Whilst praising the intent, and some of the outcomes, of the social cohesion funds, Anderson notes that they are outweighed by the 40% of EU budgets devoted to the Common Agricultural Policy, where the main beneficiaries are wealthy French farmers.

Broad economic benefits are even harder to pin down. The early days of ‘the six’ saw rates of growth that were high, but no higher than those enjoyed by other European countries. Since 1973, first with the EEC, then with the EU, growth in GDP has fallen steadily, from an average of 2.7% per annum from 1973 to 1979 to 1.2% from 2012 to 2019. As for the euro, the attempt to embrace economies at very different stages of development, and with very different policy needs, is fraught with danger.

The permanent export surplus Germany enjoys within the EU, without any danger of the normal corrective of currency appreciation, makes it politically impossible for the main beneficiary of the system to contemplate change; whereas the victims of this imbalance cannot adopt policies better suited to their needs, nor leave the system for fear of economic collapse. “Hence the trap Europe is in,” concludes Anderson: “it can neither move forwards nor backwards.” So, for “international peace, human rights, social solidarity, economic growth: the cupboard is pretty bare”.

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