Schlagwort-Archive: Euroscepticism

Oscillating between Friendliness and Scepticsm towards the European Union – A Critical Survey of the Federal Constitutional Court’s Case-Law regarding European Integration

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Prof. Dr. Thomas Giegerich, LL.M. has published a new article under the title „Zwischen Europafreundlichkeit und Europaskepsis – Kritischer Überblick über die bundesverfassungsgerichtliche Rechtsprechung zur europäischen Integration“ (Oscillating between Friendliness and Scepticsm towards the European Union – A Critical Survey of the Federal Constitutional Court’s Case-Law regarding European Integration). The full article has recently come out in the „Zeitschrift für Europarechtliche Studien“ (ZEuS), Vol. 1, 2016, p. 3-47.

Abstract

The German constitution and the Federal Constitutional Court (FCC) as its protector on the one hand and the EU constitution and the Court of Justice of the EU (ECJ) as its protector on the other hand are still in the process of defining their mutual relationship. The challenge is to find the proper distribution of judicial (and accordingly also political) power between the two levels of government in the EU as a quasi-federal system sui generis. Unsurprisingly, both courts have insisted on the autonomy of “their” respective constitutional order and on their own power to have the final say with regard to the relationship of “their” to other legal orders. Yet, despite their different approaches and occasional verbal grandstanding, both courts respect each other and have so far managed to avoid open conflicts and practiced cooperation for the mutual benefit of both the EU and its German Member State. There are, however, instances in which the readiness of the FCC to cooperate with the ECJ could and should be improved. For instance, the FCC should itself be more willing to make references pursuant to Art. 267 (3) TFEU and to compel the last-instance German courts to fulfil their reference obligation.

The three main conflict areas between the German and European constitutions and their courts have been fundamental rights, the federal structure of Germany and more recently democracy. While the federalism issue was settled some time ago, the fundamental rights conflict still poses some problems. Earlier, the FCC had criticized the lack of adequate fundamental rights protection at European level and announced that it would use national fundamental rights to close the gap, irrespective of the European law’s claim to primacy. Lately, the FCC has rebuked the ECJ for its alleged tendency to expand the fundamental rights of the EU Charter beyond the bounds of Art. 51 (1) of that Charter which interferes with the FCC’s power to determine the level of fundamental rights protection in Germany.

In the last years, however, democracy has developed into the most important conflict area, primarily with regard to the preservation of democracy in Germany. The FCC tends to equate democracy with sovereign statehood in the traditional sense which the Framers of the German Constitution had tried to overcome. While the Court also demands that the democratic structure of the EU be continuously strengthened, it has made clear its view that the European Parliament can play no more than a secondary role compared to the Council. The FCC has decried the degressively proportional representation of Union citizens in the Parliament which disadvantages German voters compared with voters from smaller Member States. But it neglects the fact that this representation mode is the only way to ensure adequate representation of the smaller Member States without expanding parliamentary membership beyond functionality. At any rate, the European Parliament’s functionality was not considered as important enough by the FCC to justify the German legislature in setting any minimum threshold for the allocation of seats. In leaving that decision to the national legislatures, EU law had obviously expected them to exercise their discretion in accordance with Art. 4 (3) TEU in a way which would prevent excessive fragmentation of the European Parliament.

The FCC’s democracy jurisprudence began with its review of the constitutionality of the Treaty of Maastricht in 1993 and was expanded when it reviewed the Treaty of Lisbon in 2009. Recently, the FCC has and still is using the democracy principle as a standard to review the endeavours for saving the Euro. The FCC employs the Germans’ fundamental right to vote in federal elections as the procedural basis for its interventions, permitting every German voter to lodge a constitutional complaint against further transfers of powers from the German federal parliament to the EU. According to the FCC, the German Constitution does not permit such transfers to an extent which voids the powers of the German parliament and thus destroys democracy in Germany. As a matter of fact, however, the FCC has so far always found ways to uphold new European Treaties or other EU acts as such and only ordered further safeguards in German law (such as the requirement of parliamentary authorization of executive measures).

One aspect of that democracy jurisprudence is the FCC’s claim to exercise both ultra vires review and “identity review” over EU acts (including decisions of the ECJ). Ultra vires review concerns the question whether EU institutions overstepped the limits of the powers transferred to them by the Treaties. “Identity review” denotes the FCC’s claim to review EU acts as regards their compatibility with the fundamental values of the German Constitution, laid down in Arts. 1 and 20 of that Constitution that define Germany’s constitutional identity in the sense of Art. 4 (2) TEU. Those review powers claimed by the FCC disregard the ECJ’s monopoly concerning the nullification or disapplication of EU acts. They are incompatible with EU law. So far, the FCC has not struck down any EU act for being ultra vires or in violation of German constitutional identity, but it cannot be excluded that this will happen in the future and precipitate a crisis in the EU.

The FCC’s case-law on the EU leaves an ambivalent impression. Several decisions are friendly toward European integration, but there are other sceptical ones, rather with regard to their reasoning (including obiter dicta) than their operative provisions. In the overall assessment, the FCC has acted neither as frustrator nor as promoter of European integration but rather as decelerator. The decelerator function has neither a patently positive nor a patently negative connotation. While improper deceleration can stall and possibly ruin a dynamic project like the European integration process, proper deceleration can save an overly dynamic process from derailment. It will be difficult to reach agreement on how the deceleration manoeuvres of the FCC should be qualified. In my view, they have had a negative tendency.

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All abstracts of this volume of the ZEuS can be found at http://europainstitut.de/fileadmin/zeus/ZEuS_1-2016.pdf.

Suggested Citation: Giegerich, Thomas, Oscillating between Friendliness and Scepticsm towards the European Union: A Critical Survey of the Federal Constitutional Court’s Case-Law regarding European Integration, jean-monnet-saar 2016, DOI: 10.17176/20220422-154412-0

A view from the United Kingdom

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European Politics in British Terms

A commentary by Darren Harvey

Euroscepticism is defined in the Oxford English Dictionary as “A tendency to have doubts or reservations regarding the supposed benefits of increasing cooperation between the member states of the European Union (and formerly the European Economic Community); opposition to greater political or economic integration in Europe.”

The implication from this definition, therefore, is that one is not in principle against the idea of European integration per se, but is rather against a further deepening of the integration process. Understood in these terms there can be no doubt that most, if not all, European Union member states contain a political faction that are in some way opposed to further European Integration but who share in the consensus that the central tenets of European cooperation and integration remain essentially worth supporting.

In contrast to this brand of Euroscepticism, however, there exists a substantial section of people in politics and civil society more generally that call for the withdrawal of their state from the European Union entirely and even the complete dismantling of the European Union as a whole.

I. A brief history of Euroscepticism in the United Kingdom

Although less prevalent in many member states, this more aggressive form of Euroscepticism is, and always has been, a considerable force in British politics. Ever since the UK joined what was then the European Economic Community (commonly referred to at the time as the Common Market) there have been persistent calls from groups on both sides of the political spectrum to leave. Many left wing trade unionists were opposed to the Common Market throughout the 1970s on accounts of it being perceived as a capitalist club that favoured the interests of big business over employees; whereas many on the right have long opposed the project of European Integration on accounts of, inter alia, a perceived raft of superfluous regulation stemming from Brussels that drastically hinders business.

This broad based opposition to Europe, coupled with the election of a Labour government in 1974 that had included a pledge to hold a referendum on EEC membership in its manifesto, led to the first ever UK wide referendum in the nation’s history being held in 1975 on the question of whether the UK should remain in the EEC. Before putting the question to the British public, however, the then Prime Minister Harold Wilson’s plan was to re-negotiate the terms of the UK’s EEC membership and then ask whether or not they should remain in on those terms or elect to leave.

Despite claiming that he had fundamentally changed Britain’s membership of the ECC and protected Parliament’s sovereignty, historians are almost unanimously in agreement today that very little of substance was actually achieved by Wilson’s re-negotiation strategy. Nevertheless, politicians and the public alike seemed content with the settlement reached by Wilson and just two years after entering the EEC a referendum on leaving was held in which both the House of Commons, and then 67% of the voting public, voted convincingly to stay.

The decades that followed saw successive rounds of amendments to the EU’s founding treaties in which the government of the day, under persistent pressure from the Eurosceptics, succeeded in securing for the UK various exceptions and opt-outs from further European integration that was being undertaken by the other Member States. As a result of this policy of never really fully committing to the European integration project, often branded as British exceptionalism, those in favour of the UK’s withdrawal from the EU were kept somewhat at bay and pushed to the fringes of their respective political parties.

II. The rise of the United Kingdom Independence Party

Today, however, Eurosceptic sentiment has grown significantly amongst both politicians and the general public in large part because of the exponential rise in support for Nigel Farage’s United Kingdom Independence Party (UKIP) who advocate a complete withdrawal of the UK from the EU as soon as possible. Whilst it would be beyond the scope of this post to comprehensively document the rise to prominence of UKIP, there are nevertheless certain factors unique to the British political system that have unquestionably contributed to their success and require consideration.

First, following the accession of many central and eastern European countries to the EU in 2004 there was an immense wave of immigration by citizens from those new member states into the UK, largely as a result of the UK, Ireland and Sweden being the only EU member states not to impose free movement transitional controls. Soon thereafter the perception that foreigners were coming to the UK and taking jobs away from the indigenous British citizens began to crystallise amongst sections of the general public, with many beginning to lose faith in the government’s pro-European outlook and the wisdom of an “open door” immigration policy.

Picking up on the population’s genuine concerns about issues such as immigration from eastern Europe, UKIP was thus able to push its anti-EU message rather effectively and soon obtained enhanced levels of exposure from large sections of the predominantly right wing media in the UK who have always been hostile towards increased levels of immigration and Europe more generally. This has given UKIP unprecedented levels of media coverage and provided a platform from which to espouse their absolute rejection of the UK’s membership of the European Union and to call for either an immediate withdrawal or at least a referendum on the issue as soon as possible. As a result, more and more people have now come to view the European Union as the root cause of many of the problems facing contemporary British society, with leaving the EU now being discussed as a distinct possibility.

Second, the three main political parties in Britain (Conservatives, Labour and Liberal Democrat) have all at one time or another pledged to hold a referendum either on EU membership itself or on specific treaties such as the failed Constitutional Treaty of 2005 and the Lisbon Treaty of 2009 with no such referenda ever taking place. This has led many in Britain to believe that none of the country’s main political parties take their heartfelt concerns about the EU sufficiently into account and that, deep down, none of them offer a viable alternative to the status quo. It is therefore into this perceived vacuum that UKIP has neatly positioned itself with its message that the only way to guarantee a proper debate about the UK’s future in Europe is to abandon the three main parties who have reneged on promises in the past and vote UKIP.

Third, trust in the British political establishment has plummeted to unprecedentedly low levels in recent years with turnouts at general elections seemingly on an unstoppable downward turn. This is in large part down to a general belief amongst the population that a vote for any of the main parties makes very little difference in practice with all of them promulgating policies that strongly resemble one another. In contrast, UKIP has come to be viewed as a breath of fresh air to mundane, consensus driven mainstream politics with its abrupt and abrasive rhetoric and its willingness to raise sensitive aspects of issues such as immigration, military spending, education and foreign aid that the other parties do their utmost to avoid.

Finally, the First Past the Post electoral system in the United Kingdom strongly favours established political parties on accounts of its simple majority calculation of votes that doesn’t take proportional representation into account. Accordingly, UKIP have yet to win a single seat in Parliament in Westminster but continue to do increasingly well in European Parliamentary elections due to its  proportional electoral system. This has meant that UKIP politicians, and in particular their leader Nigel Farage, have been given a European platform from which to launch their UK centric, Eurosceptic agenda and whilst this has certainly aided the party in gaining exposure, it has left them powerless to bring about real change in the domestic arena.

The great paradox at work here, then, is that Eurosceptic voters have tended not to vote UKIP at UK general elections since they perceive it to be something of a wasted vote given the electoral system; but then persistently voted UKIP in European Parliamentary elections, despite UKIP representation at Westminster being the only way of genuinely effecting a change in relations between the UK and the EU. Perhaps cognisant of this anomaly, recent results in UK by-elections and local government elections (both conducted under First Past the Post) have shown record numbers of votes being cast for UKIP with the projection now being that they will win a number of Westminster seats at the 2015 UK general election and thus gain a foothold in domestic EU policy.

III. David Cameron’s re-negotiation strategy

This rise in popularity and support for UKIP has also given encouragement to members of Prime Minister David Cameron’s Conservative Party who have for a long time held Eurosceptic views but were unable to exert enough pressure to bring about a referendum on the UK’s EU membership. Sensing the heightened Eurosceptic mood in the country, the Prime Minister announced last year that he would, if re-elected in 2015, seek to re-negotiate the terms of the UK’s membership of the EU before putting this negotiated settlement to the British public in an In/Out referendum in 2017.

Although similar in theory to Wilson’s re-negotiation strategy of the 1970’s, David Cameron’s attempt at altering the terms and conditions of the UK’s EU membership will, if it occurs at all, take place in entirely different practical circumstances. First, since the entry into force of the Treaty of Lisbon, the right of every Member State to withdraw from the EU is expressly guaranteed in Art.50 TEU. This was not the case in the 1970s and there was a dispute at the time whether unilateral withdrawal was permitted at all. Second, any revision to the EU treaties must now take place in accordance with the procedure set out in Article 48 TEU and this process will necessarily involve a much more formalised process with input from the European institutions, thus raising serious questions about just how much one member state may be able to alter their EU membership terms and conditions.

In addition, and closely related to this idea of reasonable expectations in the negotiation process, is the sensitive areas that the Conservative Government would like to re-negotiate. At present the party has launched a comprehensive policy review with the explicit purpose of setting out recommendations to the government on what areas of the nation’s EU membership should be put forward for re-negotiation in the event that they are re-elected. Although the full results have not yet been published, there seems to be a general consensus amongst party members that the free movement of persons – a fundamental principle in the European legal order – should be limited or in some way restricted vis-à-vis European citizens wishing to come to the United Kingdom. Whilst not wanting to predict the future, it seems almost certain that any attempt to obtain a special deal just for the UK on the fundamental principle of free movement in the European Union will be met with stiff opposition from other EU member states, thus leaving no choice but to hold a straight In/Out EU referendum.

In contrast to the Conservative Party, the other two main political parties in Britain who will contest the 2015 general election, Labour and the Liberal Democrats, have not yet committed to an In/ Out referendum on EU membership on the grounds that they believe it is in the nation’s interest to stay. With the growing support of UKIP, however, some feel that it will become politically impossible for the other parties not to offer such a referendum since not doing so may compromise their chances at the 2015 general election.

IV. The European Parliamentary elections and their possible implications for the UK and the EU

In light of the way in which Europe has come to dominate the domestic political agenda in recent times it is perhaps unsurprising that the forthcoming European Parliamentary elections have generated an unusually high level of discussion and intrigue amongst the British political class. Although the performance of the current government is of interest, the central focus is unquestionably on UKIP with there being a very real prospect that for the first time in the history of the UK’s membership of the European Union an out and out Eurosceptic party is likely to come in first place, with UKIP predicted to return more MEPs to the European Parliament than any other political party.

Should such an event materialize – and there is every reason to believe that it will with polls consistently predicting a victory for UKIP – the potential consequences not just for the United Kingdom, but also for the European Parliament as a whole, could be huge.

In this regard it is clear to see that the rise in popularity of UKIP in Britain and comparable Eurosceptic parties in other member states has the potential to drastically alter the balance of power within the European Parliament. Depending on how the Eurosceptics fare in other member states it could well be that for the first time in the history of the European Parliament the key divide will not be between centre left and centre right politicians, but Eurosceptics against those who continue to support the European Union. Whether the elections in May produce a number of Eurosceptic MEPs large enough to jeopardise the legislative function of the Parliament remains to be seen, but even if such a dramatic state of affairs does not materialise there can be no doubt that a record number of politicians explicitly hostile to the project of European Integration will be taking up seats in Strasbourg this year.

Furthermore, from a domestic perspective, a strong showing for UKIP at the European Parliamentary elections is guaranteed to further heighten Eurosceptic sentiment, particularly across England, thus piling increasing pressure on David Cameron’s government to adopt a more hostile policy towards the European Union and perhaps forcing those political parties not yet committed to an EU referendum to pledge one.

One may therefore draw a direct link between the outcome of the European Parliamentary elections in May and the prospects of not only an EU referendum being held in the UK in the next few years, but also the increased likelihood that the British people will in fact vote to leave the EU entirely – something that would unquestionably constitute the single most significant moment in the past 40 years of European integration.

Furthermore if, as many are predicting, the UKIP surge continues unabated beyond the European Parliamentary elections in 2015 then this will also have a direct impact upon the other great British (and in many ways European) constitutional question of our time: Scottish Independence.

Consistently viewed as being of a more pro-European persuasion than their English counterparts, the Scottish people are due to go to the polls in a referendum of their own this September on whether or not they should leave the United Kingdom and become an independent nation state.

In the run up to this referendum, much has been made about the prospects of an independent Scotland either being kicked out of the European Union and unable to re-join because of Spain’s refusal to ratify the accession treaty required under Article 49 TEU (the viewpoint of Commission President Barroso); having to re-apply for membership but gaining admission (the mainstream position); or somehow seamlessly transitioning to EU membership on day 1 of independence (the Scottish government view).

Accordingly, the people of Scotland face a doubly uncertain European future: Vote for independence and you may be kicked out of the EU; but vote to stay in the UK and you may be dragged out anyway by a UK wide referendum in the next few years.

With so much at stake both domestically and on the European stage it is certainly no exaggeration to state that the forthcoming European Parliamentary elections are the most important since direct elections to that chamber were first held in 1979. Not only would a UKIP victory place the current UK government under almost unbearable pressure from the media, sections of the public and, perhaps most significantly, its own members, to cave in to increased Eurosceptic demands, it would also increase Nigel Farage’s power and legitimacy within the European Parliament itself. Given that the charismatic UKIP leader already holds the position of Co-Chair of the eurosceptic Europe of Freedom and Democracy Party (1 of 7 parties in the European Parliament), and has already demonstrated his competence in building alliances with existing Eurosceptic parties from other member states, the very real possibility of a grand eurosceptic coalition headed by one of contemporary Britain’s most successful politicians must put pro-Europeans everywhere on notice.

In summary, therefore, a Eurosceptic victory in May would significantly alter the balance of power within the European Parliament and this could lead to problems, delays and perhaps even inertia in the European legislative process. From a UK perspective, it would also drastically enhance the prospects of a UK withdrawal from the EU within the next 5 years. Both of these outcomes would of course be tragedies in and of themselves for anybody who strongly believes in the process of European integration. For this state of affairs to come about unopposed, however, would be far, far worse.

With participation in European Parliamentary elections on a seemingly unstoppable downwards trajectory it has therefore never been more important for those of a pro-European outlook to get out and cast their vote.

Dr. Darren Harvey, who is a british citizen, works as a lecturer in law at King’s College London.

Suggested Citation: Harvey, Darren, A view from the United Kingdom, jean-monnet-saar 2014, DOI: 10.17176/20220308-154910-0