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Legitimising Brussels

22 July 2013 By Hugo Dixon

The European Union is facing a crisis of legitimacy. This is evidenced in a decline in support for the EU among citizens in pretty much every member country. The most extreme manifestation is in the UK, where pressure is mounting to quit the EU.

There are two main schools of thought about how to restore trust in Brussels. One is to increase the direct say citizens have over what the European Commission does – say by giving yet more power to the European Parliament or by having a directly elected European Commission president. The other is to stop Brussels interfering in things best left to nation states.

The former school of thought is based on a misconception. The EU does not have a demos: few Europeans feel European rather than Italian, German, French or whatever. Witness the low turnout for European Parliament elections. Trying to construct a democracy without a demos is artificial and so won’t solve the legitimacy problem.

The better option is to decentralise decision-making to nation states. That will bring power closer to the people.

This is the thinking behind the Dutch government’s recent call for an EU based on the principle “European where necessary, national where possible”. It concluded that the time of an “ever closer union”, a key phrase in the EU treaty, in every possible policy area is over. The UK government’s review of the Commission’s “competences” – a word for its powers, not for whether it is discharging them competently – is motivated by a similar desire. The first results of this review are due later this week.

The question, then, is how to bring about decentralisation. A popular demand by many British Conservatives is to repatriate competences from Brussels to London. Britain already has opt-outs from the single currency, banking union and home affairs matters. Some other countries also have opt-outs.

The snag is that it is one thing to secure an opt-out when a new power is being transferred to Brussels; quite another to get it back. This is because a country can veto losing a power but any other country can veto returning it. What’s more, if countries could cherry-pick which bits of EU law they wanted to follow, the union could unravel. Even the Dutch are not calling for opt-outs.

Some senior British Conservatives are, therefore, sensibly no longer pushing hard for unilateral repatriation of competences. William Hague, the foreign minister, last week said the UK should try to reform the EU for the benefit of all not just for Britain.

How, though, to achieve this? Part of the answer is to realise that decisions can be decentralised even without shifting competences away from Brussels.

The EU treaty already contains two relevant principles. One is “subsidiarity” – the idea that decisions should be taken at the most decentralised level of government consistent with effective action. The second is “proportionality” – the idea that EU legislation should be the minimum required to achieve a particular goal.

If these two principles were properly followed, there would be far less concern about Brussels meddling in things that are none of its business – for example, its attempt earlier this year to ban olive oil jugs in restaurants. Fortunately, it backed down after an outcry.

The snag is that subsidiarity and proportionality are highly subjective, says José de Areilza, law professor at Spain’s Esade University. It is, therefore, extremely hard to use them to bring a successful court action against EU institutions for overstepping their authority.

However, that doesn’t mean the politicians and bureaucrats couldn’t themselves agree to decentralise decisions where possible. Earlier this year, for example, the EU reformed its fisheries policy to give some power back to countries.

But this won’t always succeed since both the Commission and the European Parliament have an incentive to accumulate power at the EU level. Further action should, therefore, be taken to breathe life into the subsidiarity and proportionality principles.

One idea could be to tighten up their definitions so governments could bring actions against EU institutions if they meddled in things they shouldn’t – though some experts such as Areilza think the concepts will always be too slippery to use for legal purposes.

Another idea, favoured by Open Europe, the UK think-tank, is to institute a system of “red cards”, giving national parliaments the ability to strike down Commission proposals on the grounds that they contravene subsidiarity or proportionality. There is already a “yellow card” under which the Commission has to reconsider a proposal if at least a third of national parliaments object.

A variation on the theme would be to give parliaments the ability to force the Commission to review existing legislation, not just new rules. Of course, it might still be impossible to repeal laws if the European Parliament refused to play along. But, if enough national parliaments objected, their greater legitimacy might force the issue.

Breathing life into subsidiarity and proportionality would not be a complete solution to the EU’s legitimacy problem. Something special needs to be done to give countries that don’t use the single currency confidence that the euro zone won’t discriminate against them by acting as a bloc. The Commission itself needs to be more effective at disciplining fraud and ensuring that governments stick to the rules of the game once they are agreed. Unless there is serious reform on these lines, the people of Europe could well become increasingly disgruntled with the European project.

 

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