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What is This "Mystical Conception"

Posted by Editors in on Friday, November 16. 2007

This is a guest blog post about the European Union written by Pamela, who monitors EU agricultural policy on behalf of U.S. agricultural interests and thereby became familiar with the political and philosophical underpinnings of the European Union. It would be great to have a debate about the issues raised by Pamela.

What is This "mystical conception?" I'm not referring to a theological tenant. I'm recalling Harold Macmillan's swoon over the Schuman Plan, which has evolved into what we know today as the European Union. It would be churlish to expect Macmillian to have foreseen the hydra the object of his admiration has become. But surely contemporary Europeans are cognizant, yes? No?

If 'yes', then I must ask why it has come to this. If 'no', then I must ask how it has come to this.

Over the past two years or so, I have solicited the opinions of Europeans I've encountered. The negative opinions closely track my own. The positive views of the EU were more illuminating for me. They exposed premises in my own thinking about Europe and forced me to recalibrate my mental 'ear'. In the early days of the conversations I had, it would have been quite reasonable to tell me "I know you think you know what I said, but that's not what I said".

The gulf between the cultural conceptions of 'nationalism' held by Europeans and Americans could hardly be wider. To Americans it simply means the primacy of a nation's self-interest. It is an amoral political construct. Yet when Europeans hear the word, they hear one loaded with a cacophony of voices crying 'aggression', 'destruction', 'racism'.

Without exception, when the abolition of the nation-state is used as a justification for the European Union, it is the European concept of 'nationalism' that is the underlying premise. Still, from the perspective of this admittedly conservative American, the 'soft power' posture toward its global neighbors that supporters of the EU tout as one of its primary virtues is concomitant with a 'soft totalitarianism' toward its citizens.


This is a distillation of the conversations - and the readings - that have comprised my study of the European Union, the conclusions and the questions I've come away with. I have actually read the EU Constitution and most of the revisions released in October 2007. What I read is disturbing, to say the least.

The Abolition of The Nation-State?

Does the establishment of the European Union abolish the nation-state? Or is the better question; Does the establishment of the European Union supersede the nation-state?

Article I-5(1):

The Union shall respect the equality of Member States before the Constitution as well as their national identities, inherent in their fundamental structure, political and constitutional, inclusive of regional and local self-government. It shall respect the essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.

Let us parse.

The Union shall respect the equality of Member States before the Constitution

Sometimes it is a good thing to be explicit about what should be obvious. This is one of those times. What might be an example of equality of Member States before the Constitution? Perhaps the issue is more profitably explored if we ask what might be an example of inequality of Member States before the Constitution?

If Poland were permitted to have the same number of MEPs as France, even though Poland's population is considerably smaller, could France reasonably argue that her representation in Parliament is materially unequal? I think so.

What if one third of all Member States had NO representation on the European Commission (the body that proposes EU laws) during any period of rotation? Could the excluded Member States argue such lack of representation denied them equality before the Constitution? According to the Revised Treaty, beginning November 1 2014, that will be the case.

Article I-26(5):

As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.

Perhaps the 'equality before the Constitution' is that, over time, all Member States are denied representation on an equal basis.

It shall respect the essential State functions, including ensuring the territorial integrity of the State

Please explain to me why Italy is having a huge problem with Romanians. What are these 'Polish Plumbers' the Brits and the French keep banging on about? (Note that I am citing examples involving legal immigrants from Member States only.)

As I write this, Italy is convulsed with violent crimes perpetrated by Romanian immigrants, Italian citizens have resorted to vigilantism, and the Italian government has decided to expel the lot of them, or as many as it can round up.

The Italian government appears to have violated the following articles: Article I-10 2:

Citizens of the Union shall enjoy...
(a) the right to move and reside freely within the territory of the Member States.

Article II-105 1:

Every citizen of the Union has the right to move and reside freely within the territory of the Member States.

Article II-79 1:

Collective expulsions are prohibited.

The articles themselves seem to directly contradict the clause that promises respect for territorial integrity.

Maintaining law and order

I present Learco Chindamo. Mr. Chindamo is an Italian national residing in the UK. When he was 15 (1995), he murdered a school headmaster, Phillip Lawrence. He was sentenced to life imprisonment, with a required minimum of 12 years. Chindamo was released in 2006 to a resettlement program. Her Majesty's government wants to deport him to Italy. The UK High Court has ruled it cannot. Quote: "There is no error of law in the careful determination of the tribunal..his decision was mainly based on EU regulations". To be absolutely clear, the UK has a set of laws on the books known as The Human Rights Act. The commentary I have read points out that even without the force of the (unspecified) EU regulations, the Human Rights Act may have precluded his deportation on the grounds it would be 'disproportionate'.

My question is: If the Constitution intends to respect the Member States' rights to 'maintain law and order', how does it happen that the UK High Court finds that EU regulations have primacy over a Member State's laws that, for all practical purposes, provide the same protections? Could the answer be here?

Article I-6:

The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.

and safeguarding national security.

Article I-16(1) states:

The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy the might lead to a common defence.

Perhaps it reflects a lack of imagination on my part, but I am at a loss to contrive a circumstance that would threaten the security of a Member State that would not also threaten the security of the Union.

If I were a citizen of Turkey, I would be seriously questioning the wisdom of my government's attempt to join the EU. Turkey is sustaining repeated cross-border incursions from the PKK separatists in Iraq. They have murdered Turkish civilians and soldiers. If Turkey had to tolerate this nonsense as a member of the EU, Brussels would be dithering about whether the Turkish military should be unionized before authorizing any resources for them.

I could go on, but I think you get my drift. Oh, one more thing. The EU will have its own diplomatic service. It will work for the office of what for all practical purposes will be the EU foreign minister. This position is authorized to speak for the Union in the United Nations whenever Member States agree on an issue of foreign policy.

Good luck with that. I await the day when Germany, France, et. al., will relinquish their seats at the U.N., for the clout of a single seat occupied by the EU.

Is the European Union Democratic?

Citizens of Member States directly elect only the members of the Parliament. That sounds lovely. Unfortunately, the Parliament doesn't govern. As I read it, the Commission proposes laws. It is true that the EU Parliament must pass on proposed legislation to national parliaments, who may then respond positively or negatively. I don't think the record so far is terribly encouraging.

Since the procedure was placed in force in September 2006, the French have responded 36 times, the UK 17, the Germans 16, the Swedes 13, the Portuguese 13, and the Danes 12.

I defy anyone reading this to tell me what legislation any of these parliaments were responding to.

Which brings up another question: Does anyone know what percentage of laws a citizen of a Member State is subject to that were passed in Brussels as opposed to those passed by the respective national parliaments? I've read various figures but can verify none of them. The acquis communitaire is over 80,000 pages. Those Brussels people have certainly been busy.

Mark Leonard, writing in "Why Europe Will Run the 21st Century" notes:

Europe has been able to extend itself into the lives of Europeans largely unchallenged by seeping into the existing structure of national life, leaving national institutions outwardly intact but inwardly transformed. The 'Europeanization' of national political life has largely gone on behind the scenes, but its very invisibility has seen the triumph of a unique political experiment.

Mr. Leonard seems to think that's a good thing. If I were a citizen of a Member State, I would be thrashing between states of umbrage, rage, and shame. Democracy and invisibility are mutually exclusive. 'Unchallenged' indeed.

It looks as though things will continue to go on unchallenged and unaccountable. Apparently, calling something a 'treaty' instead of a 'constitution' alleviates any pesky requirements that it be subjected to popular vote. The respective national parliaments can simply vote to ratify and PRESTO! You have your new European Union.

Born not with the vote of the demos, but with a shrug.

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Zyme - #1 - 2007-11-16 12:42 - (Reply)

Thank you for this detailed work. It was quite interesting to read these parts of the EU-framework, especially from a critical observer. Although I am studying law in Germany, I can assure you that "european law" is the subject most are least interested in. It has a foreign touch as the interests of many countries are merged into it. And due to its gigantic size of legislating involving every small part of life, it is incredibly exhausting to read.

Personally, I think the creation of the EU can to some extend be compared to the merging of the german states in the second half of the 19th century. First they used to be all independent in various alliances. And then in 1871, the Reich was founded, still leaving the territories of the old states largely intact.

Also one has to consider that all structures that covered a comparable part of Europe used to be empires. With that many different peoples involved, it is simply impossible to listen to every nation, in case you want to progress. And that is why we are moving into a "majority prevails"-direction.

Pamela - #1.1 - 2007-11-16 14:15 - (Reply)

"I can assure you that "european law" is the subject most are least interested in. It has a foreign touch as the interests of many countries are merged into it. And due to its gigantic size of legislating involving every small part of life, it is incredibly exhausting to read."

Trust me Zyme, the exhaustion is intentionally induced so that you will not notice how it creeps into every part of your life. If nothing else, PLEASE become familiar in understanding just where 'compentencies' end and 'subsidiarity' begins. Otherwise, the sweat you are putting into learning German law will be for naught, as EU law is in a very good position over simply subsume it.

Zyme - #1.1.1 - 2007-11-17 14:49 - (Reply)

"Otherwise, the sweat you are putting into learning German law will be for naught, as EU law is in a very good position over simply subsume it."

First of all I think I have to point something out here: What we study has little to no influence on what we need to know at work afterwards anyway. Our study is a theoretical one about all kinds of german law in general, and some european aspects that influence these laws. But later on, when you become a specialized lawyer for example, you will have to learn entirely different laws anyway. So what we do at university is simply to prove our ability at working with the law - this is all an employer can see from our exam results. It is like an additional school exam, just a lot harder. It has almost nothing to do with life later on. So should european law become a dominating part of our professional life afterwards, at first we would know no less about it than about any other kind of work.

"Doesn't that just infuriate you? Even if one believes that the nation-state is a bad thing, does it then follow that it is to be replaced with a political structure that is, given its lack of democracy, totalitarian?

Do you even know who your MEP(s) is/are?"

No I donīt know that. But really, who does? And frankly - I donīt even know who represents me in the german or in the bavarian parliament. This is of no importance anyway, as in our political culture it does not matter WHO is your representative. All that matters is HOW MANY do represent a PARTY. Parliamentarism usually works the following way here: The party leaders of those parties which are represented in parliament decide how they will vote on a bill. They then order their MEPīs to vote accordingly. (Ever heard of "Fraktionsdisziplin" ?) Otherwise they wonīt be supported after the next elections and will hence lose their positions. So it is completely unimportant who "represents" you, when in fact they only represent their party and understandably will do everything to remain an MEP.

Maybe that is the reason why we donīt really care whether unelected european officials make the law in Brussels, or unelected party leaders do it in Berlin or Munich. It must have been different in Germany some 20 years ago, according to what my parents say. But there īs no longer a difference today.

Zyme - #1.1.2 - 2007-11-17 17:34 - (Reply)

In case you are interested, Iīd like to add a personal experience to this description: This month, I watched a discussion in the german parliament about a bill on TV, on a channel comparable to C-Span (Phoenix) for the first time.

The bill was about the so called Vorratsdatenspeicherung, part of our war on terror. I assume that you have heard about it. If you didnīt I can provide you with a link to an english description.
In general, this was a rather important decision, so taking a look at how the discussion took place was interesting to me.

60 mins were intended for this debate. The timeframe was not violated. For 50 mins, the TV channel only showed the faces of the speakers, so you did not see the entire parliament a single time. Then the camera zoomed out and the reporter commented in a bored voice: "As you can clearly see, the MEPīs are now entering the parliament, as the decision will take place now". So 90% of the MEPs have no need to show up to the debate! The leadership of their parties has told them how to vote before the debate anyway, so why show up?

But there is no need to think that our MEPīs are lazy people. They simply have got different things to do. Being an adviser or a member of the supervisory board of important companies takes a lot of time! And that is basically what their attention is mainly focused on.

Is it allowed for american MEPīs to work for companies at the same time?

Needless to say, those I told my impression from this debate had a good laugh, as they expect nothing else from our politicians. But at first everyone stared at me as if I am crazy, when I told them that I had watched a debate in parliament. It is "Who in the hell could have so much time as to watch such a cheap show?" which was written at their faces.

Fuchur - #2 - 2007-11-16 19:32 - (Reply)

Thanks, Pamela! Interesting article.

I'd like to point out an article written by Lüder Gerken and Roman Herzog (former member of the German Supreme Court and President of Germany) back in January, who both raise similar points as you do:
in German
English translation

Here's a more recent (July) and shorter article by the two, and for the lazy one's a summary of their proposals.

I think it's true that people aren't very passionate about the subject "EU" (with the exception of the die-hard opponents, of course). I guess "exhaustion" certainly is a reason for that: It's all confusing and complicated. Frankly, I couldn't even explain how decision making works exactly with Parliament and the Council. And I most definitely will not read the EU Constitution.
If you want to get people worked up over a political issue, you have to keep it simple. That's what happened when the French rejected the EU "constitution": People were afraid that they would lose social benefits. That was the issue. It wasn't about the real questions whether we need more centralization or less, or how much power the Parliament and the Coucil shoud get, and so on. I guess that highlights another problem: Meaningful discussions are difficult, because it quickly comes down to simple talking points like "nationalism is bad" or "foreigners will take away our jobs".

I have always been, and still am, favorable of the whole Europe "idea". The main reason is that the advantages are undeniable: the EURO, easier travel, mobility in general (working in another EU country, starting/moving a business, recognition of high school diplomas/university degrees), police cooperation, unified technical standards (isn't it ridiculous to have e.g.different electric plugs in every country?), ... These are obvious and practical advantages.

In contrast, I from the top of my head, I can't think of a case where an EU decision has overturned a national German decision in a negative way. Often, as in case of the new anti-discrimination law, the main criticism at home is that the German law goes beyond the EU specifications.
I admit that I don't consider your examples very scary - I mean, who cares if Learco Chindamo can be deported or not?

Pamela - #2.1 - 2007-11-16 21:08 - (Reply)

Fucher, I've just finished reading the first link you provided. Loved it! (Zyme you need to read it too - or else change your field of study).

This, in particular, is important.

--------------------------
A second cause for inappropriate centralisation is the fact that Brussels is frequently used as a backdoor for introducing legislation. If a national ministry, for example the German Ministry for the Environment, cannot assert a certain regulation project on the national level – for instance because the German Minister of Labourputs up resistance or because it would not obtain a majority in the German Parliament, it discreetly"encourages" the corresponding Directorate General in the European Commission to implement the project on the EU level.
-------------------------

I left out any discussion of this issue because I didn't want whatever I eneded up writing to be unwieldy. There is another class of creature that uses the 'backdoor' in Brussels - the NGOs. And oddly enough, quite a few of them get money from the EU (see John Rosenthal's report on Reporters w/o Borders - No Parasan has a link, I believe.)

Fucher wrote

"It wasn't about the real questions whether we need more centralization or less, or how much power the Parliament and the Coucil shoud get, and so on. I guess that highlights another problem: Meaningful discussions are difficult, because it quickly comes down to simple talking points like "nationalism is bad" or "foreigners will take away our jobs". "

Doesn't that just infuriate you? Even if one believes that the nation-state is a bad thing, does it then follow that it is to be replaced with a political structure that is, given its lack of democracy, totalitarian?

Do you even know who your MEP(s) is/are?

I too, see the advantages to those you cite as "obvious and practical". But you're getting them at a VERY steep cost. If you are so inclined, you might want to look into the European Arrest Warrant. It will make your hair fall out.

As for Learco Chindamo - well, the Brits care. And right now, the Italians care quite a bit (Romanians). I think they should have that right, and I think that right should be respected in law.

And don't even get me started on the eugenics thing.

Fuchur - #2.1.1 - 2007-11-19 17:17 - (Reply)

(Sorry, been busy...)

Brussels is frequently used as a backdoor for introducing legislation.

I agree, that's a very important point! However, it also illustrates who still has the power in Europe: the national governments. It's not some obscure bosses in Brussels who dictate the national governments what to do - it's the national politicians using Brussels as yet another option in their political struggle. So, the power still lies with the people who will be held accountable.

Pamela - #2.1.1.1 - 2007-11-20 19:23 - (Reply)

I think you're missing the point. Do you want France making laws in its own self-interest that Germans have no say in? The reason the 'Brussels backdoor' is being used as it is is because the gov't at the national level can't get it done.

Nanne - #2.2 - 2007-11-16 22:21 - (Reply)

I made a small critique of Herzog's piece when it was a few months old, see here.

To extract the key point:

Several things are off, to my estimation. First of all, the federalist and the intergovernmentalist views derive from fundamentally different diagnoses of the process of European integration, which are largely opposed. You can't cherry pick criticisms this easily. Second, both the intergovernmentalist and the federalist ideal are flawed, in my view. As are both their analyses.

One of the confusing things of this EU debate is that the people who have an intergovernmental ideal of Europe often make a supranationalist (as opposed to an intergovernmentalist) analysis.

Nanne - #2.2.1 - 2007-11-16 22:25 - (Reply)

Ah, BB code does not take quotation marks.

My piece

The definition of (analytical) intergovernmentalism

Nanne - #3 - 2007-11-16 22:02 - (Reply)

Pamela,

Your piece seems to be mainly about a theory on the 'creeping integration' of the European Union. Indeed the founding fathers of the EU - Monnet and Schumann - supported this idea. If you go into the details of the idea, you will find that they thought that integration in one area would create 'spillover pressures' leading to integration in other areas as well.

50 years of EU history show, however, that spillover pressures might exist, but that European states are capable of ignoring them, or of creating ad-hoc solutions to deal with them in other ways than to move towards greater integration.

There were periods in the history of the EU where integration was more or less stagnant, the longest period being a phase between the late 1960s and the early 1980s. Generally, integration has moved forward, but it has been driven by policy drives, outside pressures such as higher economic growth in the US and Japan, and political actors (notably Kohl, Mitterand and Delors).

Some people building on the 'functionalist' ideas of Monnet and Schumann have maintained that increasing interaction in Europe would cause national ministers to shift their sympathies towards Brussels and lead to more reporting of Europe in the national media which in turn would lead to the emergence of a national identity. But I think we can call these 'neofunctionalists' dreamers instead of analysts.

Unfortunately, the wishful thinking of these fantasists - and Leonard is one of them - is taken at face-value by eurosceptics. The idea that a European superstate is being built by stealth is a powerful narrative for the paranoid, and most neofunctionalist theory feeds right into it.

Actual developments currently point in another direction. That direction is a Europe as a mere forum for the Member States to arrange their common affairs, with the Commission being downgraded to a bureaucratic service and the European Parliament gaining a bit more say, but not much. The apolitical nature of the European project at this time naturally leads to a lower perceived importance among the population, who see the EU - quite accurately - as a mere public authority, not much more important than any federal office.

Flocon - #4 - 2007-11-18 19:51 - (Reply)

Interesting read Pamela.
Particularly the last paragraph ("Is the European union democratic?") is of much relevance and helps understand why a large majority of the Europeans have lost touch and interest in the very concept of E.U.
This body is developing into a monstrosity with a dynamic of its own, strictly kept out or reach of the European citizens.
The latest and most appaling example is the notion of Turkey being a European country deserving full membership...

Here is a piece I wrote about it.
http://tinyurl.com/22m3cs

Pamela - #5 - 2007-11-19 04:03 - (Reply)

All, thanks for your most thoughtful comments - you've given me much reading to do - I shall return tomorrow.


Nanne, expect to see me on your blog. Flocon! tinyurl, of all places........big grin.


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