[marxmail] Perry Anderson on the EU

[Louis Proyect]

LRB, Vol. 43 No. 1 · 7 January 2021
Ever Closer Union?
by Perry Anderson

Quantitatively​ speaking, the shift in the centre of gravity of work on 
the EU from America to Europe itself has been a product of a now vast 
academic industry: some five hundred Jean Monnet chairs are currently 
planted across the Union. In the midst of a sea of conformity, a cluster 
of thinkers has emerged whose writing represents a qualitative advance 
in critical understanding of the Union. In independence of spirit closer 
in type to Gramsci’s ‘traditional’ intellectuals, as distinct from the 
‘organic’ variant represented by Luuk van Middelaar, these are not to be 
found nestling in official positions; form no collective school of 
thought; and are of diverse national and generational backgrounds. A 
short list would include Giandomenico Majone (Italy), theorist of 
regulation; the jurists Dieter Grimm (Germany) and Thomas Horsley 
(Britain); the sociologists Claus Offe and Wolfgang Streeck (Germany); 
the political scientists Christopher Bickerton (Britain), Morten 
Rasmussen (Denmark) and Antoine Vauchez (France); the historians Kiran 
Klaus Patel (Germany) and Vera Fritz (Luxembourg). In the work of these 
and other scholars, the dynamics of European integration emerge in a 
cooler, more searching light than in van Middelaar’s panegyrics, 
revealing what these omit and scrutinising what they don’t with a finer 
lens.

The Union, as we know it today, is a complex composed of five principal 
institutions: the European Commission, the European Court of Justice, 
the European Parliament, the European Council and the European Central 
Bank. A consideration of these can begin with the term conventionally 
encompassing the story of their development, ‘European integration’. 
This came from America, as Patel has shown, and was adopted to avoid 
another term too pointed for tactical purposes in the politics of the 
1950s. The word it replaced was ‘federation’, rejected by governments 
and what interested opinion then existed, if ardently espoused by a 
small but committed minority of activists. For them and their academic 
sympathisers, ‘integration’ supplied a more neutral term for progress 
towards an ideal best kept, for time being, in petto. Nowhere was it 
more helpful than in characterising the work of the Court of Justice, 
which was, as van Middelaar emphasises, the first mover in the ‘passage 
to Europe’ after the Treaty of Rome.

Today the court remains, of all Union institutions, the most withdrawn 
from the public. Discreetly situated in Luxembourg, not exactly a 
European crossroads, and composed of judges appointed – one per country 
– by member states, its proceedings are hidden from public scrutiny; its 
decisions permit no admission of dissent; its archives grant minimal 
access to researchers. In modus operandi, the ECJ is the antithesis of 
the US Supreme Court, whose emoluments it comfortably tops – its 
president receives a salary worth $400,000, plus many allowances; the 
chief justice in Washington a measly $277,000. Its origins date back to 
the first stage of integration: the European Coal and Steel Community 
(ECSC) born of the Schuman Plan was endowed with a Court of Justice that 
was rolled forward into the European Economic Community set up by the 
Treaty of Rome five years later, and then into the European Union 
created at Maastricht.

Thanks to the pioneering work of a young historian from Luxembourg, Vera 
Fritz, we now have a detailed scholarly study of the composition of the 
court in the first twenty years of its existence. Her findings are 
illuminating. There were seven founding judges and two 
advocates-general. Who were they? The Italian president of the court, 
Massimo Pilotti, had been deputy secretary-general of the League of 
Nations in the 1930s. There he acted as the long arm of the fascist 
regime in Rome, advising Mussolini on what counter-measures to take to 
shield Italy from condemnation by the League for its actions in 
Ethiopia. On resigning his post in 1937, Pilotti took part in the 
celebrations in Genoa of the conquest of Ethiopia; and during the Second 
World War headed the high court of occupied Ljubljana after Italy’s 
annexation of Slovenia, where resistance was met with mass deportations, 
concentration camps, and police and military repression. The German 
judge on the court, Otto Riese, was so devoted a Nazi that without any 
duress – he spent the war as an academic in Switzerland – he retained 
his membership of the NSDAP until 1945. His compatriot Karl Roemer, an 
advocate-general to the court, spent the war in occupied Paris managing 
French companies and banks for the Third Reich; after the war, he 
married Adenauer’s niece, and acted as defence lawyer for the Waffen SS 
charged with responsibility for the massacre of the occupants of the 
French village of Oradour. The other advocate-general, Maurice Lagrange, 
was a senior functionary in the Vichy government, fully committed to the 
ideology of a ‘National Revolution’ to sweep away the legacy of the 
Third Republic. Acting as link-man between the judicial apparatus of the 
Conseil d’État and the political apparatus of the Council of Ministers, 
Lagrange was in charge of co-ordinating the first wave of persecution of 
French Jews. When Laval took over the reins of Vichy in 1942, 
transferring Lagrange back to the Conseil d’État, Pétain thanked him for 
his ‘rare perseverance’ in the regime’s legislative and administrative 
work, to which Lagrange replied that ‘for me it has been a great 
privilege to be so closely associated with the enterprise of national 
renovation you have undertaken for the salvation of our country. I am 
convinced that every Frenchman can and should take part in this work.’ 
After the war he was chosen by the Americans to help democratise the 
civil service in Germany, and by Monnet to help draft the treaty 
establishing the Coal and Steel Community.

That figures like these were the ornaments of Europe’s first Court of 
Justice reflected, of course, the closing of political ranks after the 
Cold War set in, when what mattered was not the misdeeds of the fascist 
past but the menace of communist present. It was a time when the last 
commander of the Charlemagne Division of the SS, fighting to the last 
bullet to defend Hitler in his bunker, could emerge as best choice for 
the Robert Schuman Prize for services to European unity.* Why should 
European justice too not let bygones be bygones? More generally, 
appointments to the court had little or nothing to do with juridical 
qualifications. Nearly all were political. The Belgian judge was a 
leading figure in the Catholic Party of his country; one of the Dutch 
judges was the brother of a prewar foreign minister; the French judge, 
Jacques Rueff, a former deputy governor of the Banque de France, was one 
of the founders of the Centre National des Indépendants et Paysans; a 
Catholic trade unionist from the Netherlands and a socialist magistrate 
from Luxembourg rounded out the set.

Among the next levy of judges were a founder of the Christian Democratic 
Union (CDU) in Berlin, later a deputy for the party in the Bundestag; 
the son of a leader of the Anti-Revolutionary Party (Calvinist) in the 
Netherlands; a former aide to Dino Grandi, minister of justice for the 
Duce, and brother of the then finance minister in Italy; a co-founder of 
the Christian Social Party in Belgium; a one-time Nazi and stalwart of 
the SA (1933 vintage), latterly a Social Democrat in Germany; a 
long-time functionary in the Italian colonisation of Rhodes; a former 
chef de cabinet to the civil and military governor of Algeria. Justice à 
l’européenne was never blindfold: its eyes were wide open, and round its 
head was a bandana gaudy with the colours of the establishment parties 
of the time.

The second wave of appointees also included one who was, in the words of 
an admirer, Europe’s equivalent of John Marshall, the patriarch of the 
Supreme Court in the US, responsible for establishing its authority 
across the land. Robert Lecourt was a leading politician in the French 
version of the Christian Democratic parties of Italy and Germany, the 
Mouvement Républicain Populaire (MRP), which formed part of every 
government of the Fourth Republic, for which it supplied the second and 
second to last prime ministers. The most significant difference between 
the MRP and its equivalents in Rome and Bonn was that France possessed a 
large colonial empire of which the party was a zealous defender, 
resolute in prosecuting the country’s wars in Indochina and Algeria. 
Joining de Gaulle’s government with the arrival of the Fifth Republic in 
1958, the MRP split over his announcement of a referendum on 
self-determination in Algeria. The party’s long-standing leader, Georges 
Bidault, joined the paramilitary OAS, which launched armed resistance 
against de Gaulle in the name of Algérie française and narrowly failed 
to assassinate him, while his colleagues in the party hewed to de 
Gaulle. Lecourt, who like Bidault and others in the party had been 
active in the Resistance, had a doctorate in law and served as minister 
of justice in 1948, 1949 and 1957. Under de Gaulle, he held portfolios 
for France’s colonies in Africa and elsewhere. In May 1962, he was 
appointed to the European Court of Justice.

Lecourt came to Luxembourg with a particular set of associations and 
convictions. Alongside his role as a deputy and minister for the MRP, he 
had been active since the late 1940s in the Nouvelles Équipes 
Internationales (NEI), the undeclared international of Christian 
Democracy in Europe, participating in annual congresses devoted to such 
themes as ‘firmness of Christian Democracy in the face of communism in 
crisis’, and in due course becoming head of its French section. He 
continued without compunction to lead it at the 1962 NEI congress in 
Vienna, held after he had taken up his post at the Court of Justice. The 
NEI was in favour of European unity, and Lecourt was himself a member of 
Monnet’s Action for a United States of Europe, formed in 1955. He was an 
ardent federalist.

With this background, Lecourt’s arrival in Luxembourg could not have 
been more happily timed. For on the docket of the court lay the case 
that would produce its first landmark decision, Van Gend en Loos, a suit 
brought by a small transport firm against the Dutch government for 
imposing a customs charge on its import of an adhesive from West 
Germany. To all appearances, a dispute of minor significance. In the 
shadows, however, powerful forces had been gathering around it. One was 
the European Commission in Brussels. There, heading its Legal Service, 
was the Frenchman Michel Gaudet. When working in the same capacity for 
the ECSC before the Treaty of Rome, he had already been determined to 
ensure that the future ECJ would not be an international court along 
conventional lines, but a federal supreme court on the American model. 
Corresponding in 1957 with Donald Swatland, a Wall Street lawyer who had 
been a wartime associate of Monnet, Gaudet explained that ‘federal ideas 
are still very new in continental Europe’, and sought guidance in 
promoting them. He also developed a close relationship with the American 
legal scholar Eric Stein, the first person anywhere to hail the 
promising judicial future of the Luxembourg court. In 1959 Stein invited 
Gaudet for a six-week trip to the US to learn about federalism 
first-hand. In return, while Stein was on sabbatical in 1962, Gaudet 
planted him in the offices of the Legal Service with a desk of his own, 
and invited him to sit in on briefings with lawyers preparing the 
Commission’s case on Van Gend en Loos for the ECJ. Stein, proponent of a 
set of fundamental axioms for a constitutional order in Europe, could be 
counted on as a transatlantic zealot of federalism for the Old World.

Meanwhile, associations of jurists concerned to promote European law had 
been springing up in each of the countries of the Six, of which the 
German Wissenschaftliche Gesellschaft für Europarecht (WGE) was the 
largest and most important, followed by the Association Française des 
Juristes Européens. In close touch with these organisations, the 
Commission supplied financial support for their meetings, and in 1961 
Gaudet created an umbrella group, the Fédération Internationale pour le 
Droit Européen (FIDE), ‘with the explicit aim of facilitating exchanges 
across political, bureaucratic and scholarly boundaries’. In the words 
of its first president, FIDE acted as ‘a private army of the European 
communities’. ‘In Europe around 1950,’ a member of its German branch 
recalled, ‘the idea of European unification was capable of evoking 
almost religious enthusiasm among young lawyers. We believed in the 
United States of Europe.’ The Dutch section of FIDE was particularly 
active. One of its members acted as counsel for Van Gend en Loos and it 
can be surmised with some confidence that the case was set up by this 
lobby. However that might be, supported by the Commission it found the 
right rapporteur in Luxembourg, where Lecourt, hotfoot from Paris, wrote 
the historic verdict overturning a national law.

A year later, in 1964, came the second decisive act. In Italy, two 
lawyers outraged by the nationalisation of the electricity industry set 
up a challenge to the constitutionality of its issuance of a 1925 lire 
utility bill. When the Italian constitutional court ruled that 
nationalisation was not a constitutional issue and couldn’t be 
challenged by reference to the Treaty of Rome, as passed subsequent to 
it, they appealed to the European court. Two weeks after its 
advocate-general argued that the Italian court could not be overridden, 
though it should be encouraged to seek ways of integrating European law 
into national law, the WGE held a meeting in Hesse at which three ECJ 
judges were present. There, a participant recorded, they sat with ‘red 
ears’ as a leading authority of the WGE, Hans Peter Ipsen, instructed 
them on the supremacy of European law over the national law of any 
member state. Ipsen’s opinion would prevail: five days later Lecourt 
issued the ECJ’s ruling on Costa v. Enel to the same effect. The 
cornerstone of European justice was laid.

Who was Ipsen? A jurist from Hamburg who joined the SA in 1933 and the 
NSDAP in 1937, becoming a full professor at the age of 32 on the 
strength of a doctorate subsequently published as a book under the title 
Politik und Justiz, which dealt with ‘sovereign acts’ by the state that 
dispensed with considerations of justice. Exalting the German version of 
these based on the ‘Führergewalt’ of Nazi power – which had found 
expression since 1933 in arrests, purges, expropriations, the 
Gleichschaltung of trade unions – as superior to earlier merely 
‘governmental’ legislation in France, and to the fascist variant in 
Italy, which was based on legislative authority in a division of powers 
system, the book understandably attracted the interest of the Nazi 
Party’s central Chancellery. During the war, Ipsen served as a commissar 
for Hitler, dealing with universities in occupied Belgium. There in 1943 
he extolled the ‘external administration’ of the Third Reich, which now 
covered Norway, Belgium, the Netherlands, France, the Ukraine, the 
Baltic states, the General-gouvernement of Poland, occupied areas of 
Serbia and Greece, not to speak of Alsace, Lorraine, Luxembourg, 
Southern Styria and the protectorates of Bohemia and Moravia – an area 
comprising some 2,865,000 square kilometres and 154 million inhabitants, 
in addition to the nearly 700,000 square kilometres and 90 million 
inhabitants of the enlarged ‘inner Reich’, and amounting in all to 46 
per cent of the population of the continent. These lands held the 
promise of a future Grossraumordnung of Europe under Nazi command. 
Before the war was out, Ipsen became dean of the Law Faculty at the 
University of Hamburg and adviser to the Ministry of Justice in Berlin. 
In 1945 he was briefly deprived of his chair, but soon recovered it. A 
better than average Nazi career was capped with postwar honours as he 
became the doyen of European law, in 1972 authoring a monumental summum 
on the subject in the Federal Republic.

In 1967 Lecourt became president of the court. In this position, he 
wooed national judges with regular invitations to learn from Luxembourg: 
a systematic ‘campaign of seduction’ assorted with champagne brunches, 
aimed at disarming resistance to the supremacy it claimed. By the end of 
his tenure, some 2500 magistrates from across the member states had 
enjoyed his hospitality. In the other direction, judges of the court 
were encouraged to pay ceremonial visits to the governments of the 
Community, where they were typically received, an assistant could 
report, ‘like emperors’. Since so many of them had come from political 
backgrounds, or were scions of well-placed family dynasties, they could 
take these visits as opportunities for insider exchange of news and 
views of an informal kind, oiling the wheels of ECJ presence and 
influence. Lecourt, with long experience of journalism and politics, 
also encouraged his colleagues to give lectures and write articles for 
the cognoscenti to spread the glad word of the court, setting an 
energetic example himself.

In all this he was seconded from 1967 onwards by Pierre Pescatore, 
another kin appointment, brother-in-law of the prime minister of 
Luxembourg and a more outspoken and prolific champion of federalism even 
than Lecourt – his legal opinions serving in the words of one witness as 
the ‘shock troops’ of supranational advance. Together they propelled 
European justice forward in what would later be seen as its heroic age: 
one bold judgment after another sealing the court’s authority over 
successive aspects of the life of the Community. Lecourt’s record as its 
president, Pescatore declared after his chief had retired, was nothing 
less than ‘a jurisprudential miracle’. His own contribution was to 
uphold still more firmly a ‘teleological’, rather than a merely literal 
reading of the Treaty of Rome. Whatever its clauses might or might not 
say, it was inspired by ideals inherent in ‘the common liberal and 
democratic traditions of the peoples of Western Europe’, and these 
should acquire legal force. After Lecourt had gone, it was Pescatore who 
delivered the last key judgment of the court as a driver of European 
unity, the market-levelling verdict of Cassis de Dijon in 1979, ruling 
that any product on legal sale in one country of the Community was 
vendible in any other. Lecourt’s strategy had always been to move 
gradually, avoiding any blatant provocation of national governments, 
deflecting their attention from momentous juridical pronouncements by 
attaching them to matters of seemingly minimal commercial importance. In 
this case, the commodity was a blackcurrant liqueur.

After Cassis de Dijon, strategic initiative passed to the European 
Council which gradually took shape after its creation by Giscard 
d’Estaing in the mid-1970s, and to the Commission after it came under 
the command of Jacques Delors in the mid-1980s. The court handled an 
increasing number of cases and its judicial activism scarcely abated. 
But it now reinforced rather than led the Hayekian turn in the 
Community, which crystallised in the Single European Act that came into 
force in 1987. In the new century, it has enjoyed an extra shot of 
neoliberal adrenalin with the arrival in Luxembourg of converts to 
free-market principles from Eastern Europe, resulting in two judgments – 
Viking and Laval of 2007, pitting Baltic freebooters against Nordic 
trade unions – that undermined labour rights. These were a departure 
from the tactical precepts of Lecourt, arousing adverse public attention 
of the kind the court had always sought to elude, and conspicuous 
further steps did not ensue. After Maastricht an important task would 
still fall to the court, but of a different character. Its pioneering 
work – celebrated by van Middelaar as the coup that essentially founded 
today’s Union – had been accomplished.

Where​ did this achievement lie? The two jurists who have spelled it out 
with greatest clarity are Dieter Grimm, for twelve years a judge on the 
German constitutional court, and Thomas Horsley, two generations 
younger, a senior lecturer at Liverpool University. The decisions of the 
court in the 1960s, Grimm has observed, were ‘revolutionary because the 
principles they announced were not agreed on in the treaties’ that 
created the ECSC and the EEC, and ‘almost certainly would not have been 
agreed on had the issues been raised’. It was a court with an agenda 
that did not correspond to the intentions of its founders, seeing itself 
‘neither as the guardian of the rights of the signatory states, nor as a 
neutral arbiter between the states and the Community, but rather the 
driving force of integration’. Its assertion of the supremacy of 
Community over domestic, let alone constitutional laws, Horsley remarks, 
had no basis in the Treaty of Rome, which granted it rights of judicial 
review only ‘with respect to acts of the Union institutions’, not those 
of member states. ‘Yet, in effect, this is exactly what the court now 
undertakes on a routine basis’, proceeding as if ‘the treaty framework, 
as touchstone on the internal constitutionality of all EU institutional 
activity, has never actually meant what it so clearly states’.

But is there anything particularly unusual about this? Isn’t creative 
interpretation of laws by judges almost as familiar as of figures by 
accountants? On an alternative and less cynical view, isn’t the outcome 
what matters? Ankersmit or van Middelaar would see this as an instance 
of the judicial sublime. Without going that far, it is reasonable to 
inquire what’s wrong with the upshot. The answer lies at the level of 
both principles and consequences. As to the first, Horsley opens his 
study with the following grave statement: ‘Among EU institutions, the 
court remains uniquely distinguished as an actor in the integration 
process. It is the only Union institution whose activities are not 
routinely scrutinised (by itself or by others) for compliance with the 
EU treaties.’ Yet the ‘treaty framework provides no basis whatsoever to 
justify differentiating between the court and the Union’s administrative 
and political institutions with regard to compliance with its demands. 
The court is formally designated an institution of the Union under 
Article 13 TEU. As such, along with the Union’s political institutions, 
it is irrefutably subject to compliance with EU treaties.’ But once, 
from the moment of its coup, the court had authorised itself as the 
guardian of a constitution which had no basis in the treaties, but 
supposedly corresponded to their ‘ultimate purpose’, what other 
institution could bring it to book? Its circular self-validation ruled 
out any such challenge.

The court thus became not just a unique institution within the 
Community, but unique within supreme or constitutional courts, endowed 
with powers that no analogue in a democracy has ever possessed. In all 
other cases, the rulings of such courts are subject to alteration or 
abrogation by elected legislatures. Those of the ECJ are not. They are 
irreversible. Short of amendment of the treaties themselves, requiring 
the unanimous agreement of all member states, ‘which, as everyone knows, 
is all but out of the question’, as Grimm writes, there is no recourse 
against them. They are set not in stone, but in granite, and are far 
from neutral in effect. Written in ‘a technical language that is often 
opaque’, the court’s decisions often cloak highly political issues in an 
apolitical fashion; they fall ‘below the threshold of public attention’, 
rendering their effects difficult ex ante to perceive; but should they 
subsequently be protested, they are treated as accomplished facts that 
citizens are told it is too late to do anything about – ‘there is now no 
alternative.’ Since these rulings have constitutional force, much of 
what would be ordinary legislation at national level has been built into 
successive sequels to the original Treaty of Rome – Maastricht, 
Amsterdam, Nice, Lisbon – resulting in documents of such ‘epic length’ 
that the Ireland’s EU commissioner declared of the last that ‘no sane 
and sensible person’ could read it, after his prime minister admitted, 
after signing it, he had not done so: they amount, in effect, to 
enormous cryptograms beyond the patience or grasp of any democratic public.

The effect of ‘constitutionalising’ (the apostrophes are needed, because 
the treaties remain international pacts, not federal charters) issues 
like the permissibility of state aid to industries, or subsidies to 
public services, is to immunise judicial ukases on them against any 
ordinary exercise of the popular will. As Grimm writes, ‘the stronger 
the substantive content of the constitution, the narrower the leeway for 
politics.’ Typically, ‘whatever is governed in the constitution is 
removed from the realm of political decision-making. It is no longer an 
object, but a premise of politics.’ In the EU, ‘it cannot be influenced 
even by the outcome of an election.’ That the judges who deliver the 
decisions of the ECJ are themselves unelected is, of course, common 
though not invariable practice in constitutional courts. What is not, is 
the European court’s ‘insatiable jurisdictional appetite’. Its current 
president, the Belgian Koen Lenaerts, has spelled out the extent of that 
hunger. In his words: ‘There is simply no nucleus of sovereignty that 
the member states can invoke, as such, against the Community.’ The court 
aims at ‘the same practical outcome as the one that would be obtained 
through a direct invalidation of member state law’.

To such self-aggrandising presumption corresponds neither judicial nor 
political competence. Even setting aside its systematic disregard for 
the limits to its scope in the treaties, Horsley writes, ‘the court 
fares poorly in comparison to its counterparts on the classic measures 
of comparative institutional analysis: democratic legitimacy and 
technical expertise. Its judges are not elected, its deliberations are 
secret and, as a court of general jurisdiction, it enjoys no special 
expertise in the wide range of policy fields over which it intercedes to 
adjudicate.’ But if it has no special expertise, it had from the start a 
particular orientation, ‘a settled and consistent policy of promoting 
European federalism’, and after the turn of the 1980s, a decided social 
inclination, which it has pursued, in Grimm’s view, with ‘missionary 
zeal’. Interpreting ‘prohibitions of discrimination against foreign 
companies so widely’ that ‘almost any national regulation could be 
understood as a market access obstacle’, and pushing ‘privatisation 
regardless of the motives for entrusting certain tasks to public 
services’, the court effectively deprived member states of ‘the power to 
determine the borderline between the private and public sector, market 
and state’.

Such judgments come not from a eurosceptic standpoint, but from 
authorities committed to what they see as the achievements of European 
integration. For Grimm, what is needed to restore legitimacy to the 
process is essentially the de-constitutionalisation of political 
decisions to allow their discussion by voters and revision by 
legislatures. Horsley, after explaining what in his opinion have been 
the benefits of judicial intervention along with its costs, assures 
readers that he does not seek to undermine the Court of Justice, let 
alone add to ‘denigration of the Union’, but to enhance the legitimacy 
of its lawmaking. Yet if their accounts of the ECJ are those of friends 
of the court, it is not clear what its enemies would have left to say. 
The truth is that, on any reasonable reckoning, it would be difficult to 
conceive of a judicial institution in the West that, from its tenebrous 
origins onwards, was purer of any trace of democratic accountability.

The​ European Commission, whose evolution has been more winding, was in 
its early years the crucial partner of the court. Its history can 
roughly be divided into three phases, corresponding to the three figures 
who would hold its presidency for a full decade across two terms: Walter 
Hallstein (1958-67), Jacques Delors (1985-95) and José Manuel Barroso 
(2004-14). Hallstein, a German lawyer and diplomat – a Christian 
Democrat best known for the Cold War doctrine to which he gave his name, 
which made West German recognition of any state dependent on its refusal 
to recognise East Germany – was an outspoken federalist, who conceived 
the Commission as a proto-government of the Community, declaring 
national sovereignty a ‘doctrine of yesterday’, and awarding himself the 
status of ‘prime minister of Europe’. De Gaulle put a brusque end to his 
pretensions in 1965, and he left Brussels a mocked and deflated figure. 
However, in his heyday, between 1958 and 1964, 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.

As the French scholar Antoine Vauchez has shown, Brussels quickly became 
a magnet for corporate lawyers and investors from America, on the 
lookout for market opportunities and bringing with them the expectations 
and practices of a powerful federation. They soon formed close relations 
with the substantial number of high-flying Belgian commercial jurists, 
and this common milieu offered smooth intermediation between arriving 
multinationals and the Commission, and a propitious setting for exchange 
of ideas with key departments, such as Competition and the Legal 
Service. The European Economic Community created by the Treaty of Rome 
was not conceived as a free-fire zone for the market, and gave birth to 
a heavily subsidised and regulated Common Agricultural Policy that was 
anathema to liberal economists, prompting Hayek’s fellow thinker Wilhelm 
Röpke, taking aim at its Belgian founder, to denounce it as nothing more 
than a miserable ‘Spaakistan’. From the outset, however, the Competition 
Service of the Commission was a fortress populated by German 
ordo-liberals, whose devotion to market principles and determination 
they should not be impeded by improper meddling on the part of any state 
made them natural proponents of federalism, as Hayek had been before the 
war. In this cause, the Legal Service led the way, supplying the Court 
of Justice with the overwhelming majority of cases on which its verdicts 
could build an ever more extensive edifice of European law trumping the 
rights of national legislatures. Between 1954 and 1978 the ten most 
frequent plaintiffs before the court brought a total of 1381 cases 
before it: of these 1082 came from the Commission or its adjuncts – just 
under 80 per cent. The loop of collusion was tightly woven. By 1964, 
Hallstein could announce triumphantly that Europe had achieved ‘the 
beginnings of a real and full “political union”’.

A year later he was a busted flush, and it took another twenty years for 
the Commission to recover its dynamism. When it did so, it came under 
other colours. Delors, whose youthful background was in the Catholic 
trade-union confederation in France, in due course joined the Socialist 
Party, and there advocated a ‘social Europe’. But when there was a 
conflict between the adjective and the noun, the noun came first. As 
finance minister under Mitterrand, it was Delors who made sure that the 
socialist programme on which Mitterrand had been elected and had at 
first implemented, was ditched in the famous U-turn of 1983 to 
austerity, in order to keep the franc in the European Monetary System. 
At the head of the Commission, Delors was profuse with declarations of 
the need for social solidarity, and did in the end secure cohesion funds 
to help less advantaged regions in the Community. His main achievements, 
however, were to pass the Single European Act – crafted under him by an 
emissary of Thatcher – unifying and deregulating markets across the 
Community, and to drive through the Monetary Union that became the 
centrepiece of the Treaty of Maastricht. In his mind, these were the 
necessary preambles to European-wide social solidarity. Not only were 
they economically efficient in themselves, promoting growth that would 
eventually lift all boats; without them, governments could not be 
persuaded of the need to redistribute wealth across classes and regions, 
essential if Europe was to win the full adhesion of its citizens. A far 
more charismatic and commanding figure than Hallstein, a politician who 
dealt on equal terms with all the national leaders of the day, Delors 
led them to the single currency, but failed to achieve the social 
objectives he had thought he could buy with it. All governments save 
Britain and Denmark signed up to the first. Few wanted much of the 
second. Delors did get cohesion funds – help for disadvantaged regions, 
not classes – out of Maastricht, but these were the crumbs of 
solidarity, not the loaf: compared with the subsequent impact of the 
single currency, little more than the alms of an instrumental charity.

Barroso, installed four years before the global financial crisis of 2008 
and exiting late in 2014, just before Syriza came to office, was the 
second sitting prime minister of a member state to become president of 
the Commission. A politician of the Portuguese right, whose main 
previous claim to fame was hosting the Azores Summit, attended by Bush, 
Blair and Aznar, which launched the Iraq War, his appointment to 
Brussels the following year demonstrated how hollow was the nominal 
opposition of France and Germany to Operation Iraqi Freedom. An usher of 
austerity in his own country, his tenure marked the apogee of the 
neoliberal drive that followed the introduction of the single currency, 
with the promulgation of Bolkestein’s Services Directive in 2004 and the 
arrival of the Treaty of Lisbon in 2010. But though personally as 
ambitious for his role as Hallstein or Delors, the ideas he represented 
were conventional wisdom by the new century, while since Maastricht the 
power of the European Council had grown significantly at the expense of 
the Commission, and in Barroso’s second term it enjoyed its own 
president in Van Rompuy, a rival for the limelight with whom his 
relations were never good. His tenure was less consequential than that 
of his predecessors.

Today, 27 commissioners, one per member state, each allocated a 
portfolio – naturally, of vastly differing importance: Competition long 
since became the top prize – formally enjoy equal status under the 
president, currently the CDU politician Ursula von der Leyen. In 
reality, as the former director-general of the Legal Service, the 
all-purpose Brussels fixer Jean-Claude Piris (22 years in the saddle) 
pointed out in 2012, since this would mean that the fourteen 
commissioners from the Union’s smallest countries, representing a mere 
12.65 per cent of the population of the Union, could easily outvote the 
six commissioners from its biggest countries, representing 70 per cent 
of its population, decisions are always taken by ‘consensus’ – that is, 
behind a façade of unanimity, under the impulsion or veto of the six 
major states. Similarly, the president of the Commission, responsible 
for liaison with the heads of government of member states, normally 
confers only with those in that select group, or perhaps just with 
Berlin and Paris at the top of it: to do otherwise would be ‘too 
time-consuming’. So composed, the Commission is formally vested with the 
sole power to propose legislation for the Union, but here the reality 
differs: more than two-thirds of its proposals are now hatched jointly 
with representatives of the member states in the dense undergrowth at 
Brussels, in which COREPER – which brings together permanent envoys to 
the EU – holds pride of place, and then rubber-stamped by the relevant 
Council of Ministers when passed up to it.

Below the commissioners, appointed for five-year terms, sits the 
permanent bureaucracy of the EU, some 33,000 strong – the ‘Eurocrats’, 
as coined by the Economist in 1961 and popularised with no pejorative 
intent by a book of Altiero Spinelli in 1966. In its higher echelons, 
where heads and assistants of the Commission’s 32 directorates-general 
are to be found, recruitment was until the mid-1980s heavily weighted 
towards functionaries with a legal background; below them, in the body 
of the administration, a general humanistic orientation was encouraged, 
an MA in European studies an advantage, preferably from the College of 
Europe in Bruges. Thereafter, and with the subsequent enlargement of the 
Union to the East, the pattern changed. Under Romano Prodi (president 
1999-2004), Neil Kinnock was entrusted with the task of modernising the 
system of pay and recruitment, bringing the tidings of New Labour to 
Brussels, with predictable outcomes. By 2014, two-thirds of the 
directors-general were trained in economics, receiving commensurately 
higher salaries to compete with the private sector; lower down, in the 
name of democratising future intakes, knowledge of foreign languages or 
of any general culture faded as requirements, giving way to MBAs.

For observers of the course of the EU since Maastricht, such changes 
might be logical enough – neoliberals were being neoliberalised – but 
they were not appreciated by many of those affected by them, their 
Anglo-Saxon origin rubbing post-Brexit salt in the wounds. ‘After having 
broken Europe from the inside for years, they’re breaking it from the 
outside by destroying its political legitimacy,’ Didier Georgakakis 
quotes one as saying. Another, not as angry: ‘It’s insane when you think 
about it. They are leaving after having imposed their administrative 
model on us?’ Yet another: ‘The new model is the Procter & Gamble one.’ 
Barroso’s elevation, from presidency of the Commission to chairman of 
the international division of Goldman Sachs, was a natural sequel to 
these reforms. But the alteration of outlooks and mores in the 
Commission also has to be understood in terms of its surroundings. There 
are now around 30,000 registered lobbyists in Brussels. That is more 
than double the number infesting Washington, reckoned at a mere 12,000. 
In Brussels, 63% are corporate and consultant lobbyists, 26% are from 
NGOs, 7% from think tanks and 5% municipal. That Europe’s executive 
could resist infection from the vapours of this swamp is implausible.

Since Delors, the Commission has had to play second fiddle to the 
European Council, which is unlikely to appoint a figure of his political 
stature to lead it again. Contemporary popular suspicion of the 
Commission as the bureaucratic demiurge of the Union is in that sense 
misplaced. But it remains a considerable power within the complex 
machinery of the EU, by reason of three attributes peculiar to it. The 
first is simply its size as a corps of permanent functionaries compared 
with that of any of the Union’s other institutions, and the closed 
citadel of its workings – 34 different ‘procedures’ that no lay person 
is equipped to understand. The second lies in the sheer size of the 
rulebook that it wields as an instrument of power within the Union – the 
acquis communitaire, impenetrable to its citizens, but inescapable for 
its states, forming the primary means of the Gleichschaltung of Eastern 
Europe to EU norms, over which commissioners presided as proconsuls from 
Brussels. Originally put together as a codification of EEC regulations 
to which the UK, Denmark and Ireland would have to adapt on entry into 
the Community in 1973, when it already came to 2800 pages, the acquis 
now runs to 90,000 pages, the longest and most formidable written 
monument of bureaucratic expansion in human history (the notorious US 
tax code is a mere 6500). Foucault’s overblown identification of 
knowledge with power here finds literal embodiment.

‘This technical and cognitive equipment’, Vauchez writes, going on to 
quote Joseph Weiler,

is not only the instrument that officially defines and authenticates 
that ‘Europe’ to which candidates are applying in phases of enlargement; 
it equally inserts itself into the most routine operations of the EU, 
turning into Europe’s ‘constitutional operating system ... axiomatic, 
beyond discussion, above debate, like the rules of democratic discourse, 
or even the very rules of rationality themselves, which seem to 
condition debate but not be part of it’.

Nor, of course, is it institutionally neutral.

As it formalises a stable figure of Europe (its foundations, its 
missions) and of its value objects (its body of law), the acquis 
implicitly locates the ability and responsibility for the ‘rational 
guidance’ of European affairs in particular institutions (here: the 
Commission and the court) and professional groups (Euro-lawyers and EU 
civil servants), while dispossessing others (here: member states, 
constitutional courts, national diplomats, bureaucrats etc).

At the same time, along with the acquis as a disciplinary instrument, 
the Commission possesses a mollifying implement of power in the 
apportionment and disbursement of its cohesion funds, the annona of van 
Middelaar’s latter-day Roman strategy for securing clients. These form a 
significant source of patronage, a means of inducing compliance or 
rewarding loyalty, whose promise could be critical in winning local 
elites to the will of the Union, if conditions were also bent where it 
was politic to overlook corruption in the interests of ideological 
subsumption, as in Romania and other candidates for membership. Little 
noticed at the time, the geographical enlargement of the Union to the 
East also produced the greatest operational enlargement of the 
Commission since Hallstein’s time, as it took charge of the task. That 
some of its fruits have since become thorns in its side, as the more 
advanced states of Eastern Europe, once their elites were safely inside 
the Union, became less submissive to it, is another of the unintended 
consequences, or counter-finalities, of which there have been so many in 
the history of integration.

What​ of the European Parliament? Composed now of 705 deputies, 
apportioned between the Union’s 27 countries to reduce somewhat the 
weight of the largest (Germany in particular), and shuttling monthly 
between Brussels and Strasbourg, it has historically been an ally of the 
Commission and the court in its aspirations to a federalist future for 
Europe. The Commission would have liked to become what Hallstein 
expected it to be, the governing executive of Europe, and the Assembly – 
it only came to be officially styled a Parliament in the 1980s – sought 
to become the legislature of Europe to which this executive would be 
responsible: hopes that did not materialise. Nevertheless, over time the 
Parliament has acquired a substantial bureaucratic infrastructure of its 
own – presently, some seven thousand functionaries service it – and a 
limited number of powers, of which the three most significant are the 
right to ‘co-decision’ with the Council on legislation proposed by the 
Commission; to reject – but not to amend – the budget proposed by the 
Commission; and to reject – but not to elect – commissioners chosen by 
the president of the Commission. What it does not possess are the rights 
to elect a government, to initiate legislation, to levy taxes, to shape 
welfare, or determine a foreign policy. In short, it is a semblance of a 
parliament, as ordinarily understood, that falls far short of the 
reality of one.

Voters are aware of this, and have shown scant interest in it. Turnout 
at European elections is notoriously poor, falling steadily across four 
decades to a point where its recovery to just over 50 per cent in 2018 
could be hailed as the sign at last of a robust European democracy, 
though this was still ten points below the figure in 1979, when the 
first such election was held. Nor are most of the citizens who do take 
the trouble to go to the polls voting on European issues. Rather, in 
casting their ballots for or against local parties, they are expressing 
their views on the performance of their national governments. The result 
is an assembly composed of some two hundred heteroclite parties, which 
then group themselves into six or seven blocs, whose unity does not run 
deep – ties between deputies in national delegations are often closer 
than with their pan-European affiliates. No division between government 
and opposition can emerge, because there is no government to be formed 
or opposed. The pattern instead is for grand coalitions along German 
lines, bringing together centre-right and centre-left blocs to control 
the proceedings, and electing the chief officers and key committee 
chairs of the assembly from their ranks, with variable input from 
Liberal and Green auxiliaries. The political difference between the two 
main blocs, in general faded enough at national level, becomes all but 
completely invisible in the successive GroKo combinations at Brussels 
and Strasbourg.

As might be expected, in this huge, heterogeneous, largely ceremonial 
body, deputies have little appetite for going through the motions of 
actually being there. Average attendance is around 45 per cent. 
Virtually all the work is seconded to committees, where behind closed 
doors the mysteries of ‘trilogue’ are enacted: that is, represent-atives 
of the Parliament confer with representatives of the Council of 
Ministers and of the Commission as to what legislative proposals 
emanating from the Commission, and typically pre-cleared by member 
states and their permanent representatives in Brussels, can be accepted 
for transmission to a vote in the chamber – the discussions mostly 
revolving around matters of procedure rather than substance. As 
Christopher Bickerton notes, ‘between 2009 and 2013, 81 per cent of 
proposals 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.’ Such is the alchemy of co-decision.

In 2014, when turnout was just 42.5 per cent, the Parliament launched a 
campaign with wide media support to convert the elections to it into a 
pan-European exercise in the democratic will: each of the political 
blocs would nominate a candidate for the presidency of the Commission – 
legally in the gift of the Council – and the bloc securing the largest 
number of seats, equipped with the backing of the whole Parliament, 
would then elevate its Spitzenkandidat to the command of the Commission, 
as any other legislature might vote a government into office. The 
centre-right gained most votes; its candidate was the fixer Jean-Claude 
Juncker. After some tergiversation, Merkel prevailed on the Council to 
accept him and Juncker became president of the Commission on the 
strength of about 10 per cent of the European electorate. Had she not 
done so, Habermas told the Frankfurter Allgemeine Zeitung, it would have 
been ‘a bullet to the heart of the European project’. Five years later 
Macron put his foot down, and the next president was picked according to 
the rules by the Council, ignoring the hapless Spitzenkandidat. 
Indignant at this rebuff to its pretensions, there was talk of a 
rebellion in the Parliament, which though it has no right to select, can 
reject a Commission president. But wouldn’t that provoke a crisis of the 
European project? The terrifying prospect of open disagreement between 
its institutions quelled enough spirits for Ursula von der Leyen to 
sidle into office.

The function of the European Parliament, which neither aggregates nor 
channels the wishes of voters, from whom once the polls close it becomes 
completely detached, is, as the Italian scholar Stefano Bartolini has 
put it, ‘elite consolidation’. That is, a process in which the parties 
collude with one another to present the appearance of a democratic 
assembly, behind which oligarchic coteries are comfortably entrenched. 
These would be happy to gain more powers, but have no interest in ceding 
any to those they nominally represent. The width of the gap between the 
institution and the populations beneath it can be judged from the rare 
occasions on which the latter have been able to make their voice heard 
directly. In the Netherlands, turnout for the European elections of 2004 
was just 39 per cent. A year later, it was 63 per cent for the 
referendum on the Draft Constitutional Treaty – which, while supported 
by 80 per cent of the Dutch delegation at Strasbourg/Brussels, was 
rejected by 62 per cent of Dutch voters. The Parliament is not what it 
seems, and is the least consequential component of the Union. Does that 
mean it is little more than a glorified fig-leaf? Not quite. Appearances 
matter, and in its fashion the Parliament plays a constructive role for 
the Union, supplying a measure of the legitimation that any 
self-respecting liberal order requires. However limited citizen 
investment in them may be, synchronised pan-European polls are better 
than none, and their beneficiaries can continue to hope that a vibrant 
federal polity will one day arise from them.

Of​ an altogether different order of political avoirdupois is the 
European Central Bank, created to manage the single currency that came 
into force in 1999. Today it is one of the most powerful EU 
institutions, some would say, the most powerful. Based in Frankfurt, its 
governing council is composed of the heads of the central banks of the 
Eurozone countries and the six members of its executive board, meeting 
every two weeks. Its proceedings, unlike those of the Fed or the Bank of 
England, but in keeping with those of the European Court of Justice, are 
secret. Occasionally, unlike the ECJ, a member may resign, but its 
decisions are formally unanimous. No dissent is ever published. The 
Treaty of Maastricht conferred absolute independence on the bank, which 
operates without any of the counterweights – Congress, the White House, 
the Treasury – that surround the Fed, embedding it in a political 
setting where it is publicly accountable. Unlike any other central bank, 
the independence of the ECB isn’t merely statutory, its rules or aims 
alterable by parliamentary decision: it is subject only to treaty 
revision. Nor, unlike the Commission, Parliament, Court of Justice or 
even Council, are its proceedings cumbersome. It can act with a speed 
and impact no other EU institution can match.

Maastricht gave the ECB a single objective. Where the Fed is charged by 
Congress with ensuring maximal employment as well as stable prices, the 
single responsibility of the ECB was to ensure monetary stability in 
what would become the Eurozone. From the outset, as economists were 
aware and not a few pointed out, the economies due to adopt the euro, 
differing widely in size, composition and level of development, in no 
way met the criteria of an ‘optimal currency area’ as set out by the 
economist Robert Mundell and others. Quite the contrary. But this did 
not deter the Delors Committee which drove the project through, since 
its aims were political rather than economic: in part to tie down a 
reunified Germany within the Community, but more broadly to create a 
currency which would lock those states that adopted it so closely 
together that they would be obliged to follow monetary union with 
political union. As an explicit goal, that was a bridge too far at 
Maastricht, where federalist hopes were dashed by intergovernmental 
bargaining of a traditional sort. Still, the treaty created a European 
Economic and Monetary Union, the assembled politicians who signed the 
document characteristically giving little thought to what its 
consequences might be when they were no longer in office. The portals of 
a political union were not entered; nor were they foreclosed.

The disjunction between means and ends soon made itself felt. Wim 
Duisenberg, the crude Dutch banker who became the first president of the 
ECB, prided himself on being a rough-hewn champion of financial 
orthodoxy on the best Anglo-Saxon lines. Yet he was overjoyed when 
Greece, after suitably cooking its books, promptly adopted the euro. His 
reasons were not economic, but political. Though the single currency was 
not, for those administering it, simply a short-cut to federalism, it 
was – as Giandomenico Majone, a thinker truer to classical principles, 
would put it – a ‘prestige project’ designed to raise the profile of the 
EU in the world. A decade later, the Eurozone would be paying for this 
vanity. Jean-Claude Trichet, the Frenchman next at the helm in 
Frankfurt, was a smoother figure, but equally blind. His response to the 
global financial crisis was pro-cyclical: raising interest rates to 
force governments to cut public spending, imposing austerity as a cure 
for the crash. His successor, Mario Draghi, was widely celebrated for 
reversing course, spraying money into the Eurozone economies with 
purchase of government bonds and a generous dose of other forms of 
liquidity. In fact, there was more overlap between the two than 
generally believed. Draghi, responsible for a sweeping privatisation 
progamme in Italy, was more outspokenly neoliberal, pronouncing Europe’s 
social contract obsolete in the pages of the Wall Street Journal. But in 
August 2011, the two jointly wrote a secret letter to Berlusconi, then 
Italian prime minister, demanding that he resort to a Cold War emergency 
mechanism to cut pensions and other public expenditures – an 
unprecedented violation of its mandate by the bank. Three months later 
Berlusconi was gone. For his part, Trichet had by the end of his tenure 
come round to the use of schemes to circumvent the ban in the Treaty of 
Maastricht on the purchase of public debt by the bank. Praising her 
chief, the former head of research at the ECB, Lucrezie Reichlin, told 
the Financial Times in February 2012: ‘The whole concept of getting 
around European rules and doing QE without calling it QE was extremely 
clever.’

Five months later, Draghi announced to an audience in the City: ‘Within 
our mandate, the ECB is ready to do whatever it takes to preserve the 
euro.’ After boasting of the superiority of the Eurozone’s economic 
performance to those of the US and Japan (the latter held less ‘socially 
cohesive’ than the Union, where half the youth of Italy, Spain and 
Greece were unemployed), he ended by making clear what was ultimately at 
stake in the crisis. No one should ‘underestimate the amount of 
political capital that is being invested in the euro’. It was to 
safeguard this that the ultima ratio regis of the hour was required: 
‘targeted longer-term refinancing operations’, ‘outright monetary 
transactions’ and the rest, or clever ways of getting around European 
rules, ‘within the mandate’ of the bank – that is, in blatant breach of 
Articles 123 and 125 of the Treaty of Lisbon. In due course, their 
legality would be challenged before the ECJ. But just as it had no 
compunction in interpreting the Treaty of Rome to arrogate powers to 
itself of which no trace can be found in the document signed by the Six, 
so the ECJ had none in deciding that Lisbon meant the opposite of what 
it said. Since it was now a question not of reading into a treaty what 
it did not contain, but of purging one of what it did contain, the 
contortions required were, in Horsley’s words, ‘herculean’. The comedy 
of judges solemnly explaining that financial assistance under the 
European Stability Mechanism constituted an act of economic, not 
monetary policy, and was therefore perfectly in order, while outright 
monetary transactions were an instrument of monetary, not economic 
policy, and therefore were also perfectly in order, calls for the pen of 
a Swift. What did the ‘no bail-out clause’ of Article 125 actually mean? 
That bail-outs were fine, so long as they served ‘the higher objective’ 
of preserving the euro. Or in van Middelaar’s gloss, to break the rules 
was to be true to the contract.

In Germany successive attempts in 1974, 1986, 1993 and 2009 to contest 
the validity of laws or treaties of the Community before the country’s 
own constitutional court have all yielded the same result. The judges in 
Karlsruhe have declared that Germany’s Grundgesetz – Basic Law – may not 
be overridden by the European Court, but since no such infringement has 
‘so far’ or ‘yet’ occurred, the plaintiffs have no case. Last year, it 
was called on once more, this time to pronounce on the legality of the 
blessing the ECJ had given to the ECB’s bond-purchasing programme. Once 
again it declined to say this was illegal, while observing that the 
proportionality of its effects had not been adequately appraised, and 
instructing the German government and the Bundesbank to conduct such an 
appraisal and ensure appropriate proportionality. There was uproar in 
the Euromedia. The Financial Times was apoplectic. ‘The German court has 
set a bomb under the EU’s legal order,’ Martin Sandbu cried. The court 
had ‘launched a legal missile into the heart of the EU. Its judgment is 
extraordinary. It is an attack on basic economics, the central bank’s 
integrity, its independence and the legal order of the EU,’ Martin Wolf 
thundered. ‘Future historians may mark this as the decisive 
turning-point in Europe’s history, towards disintegration.’ They need 
not have turned a hair. The Bundesverfassungsgericht is a mostly 
toothless body, as its studiously suspended judgments indicate. Best 
known for meekly overturning Germany’s Basic Law to allow Schröder and 
Merkel in 2005 to stage an unconstitutional election before polls were 
due, it takes care to avoid serious offence to the Obrigkeiten of the 
day. Berlin and Frankfurt are unlikely to have much difficulty sending 
Karlsruhe back to sleep.

No piety is intoned so frequently by the EU, or identified so 
complacently with itself, as the rule of law. Fatta la legge, trovato 
l’inganno is popular wisdom in Italy. The adage implies that those who 
make and those who trick the law are not the same. What distinguishes 
the Union is that the two are one. In the hands of the European Court 
and the chorus of its admirers, the rule of law has more or less come to 
mean the misrule of lawyers who will stop at nothing to bend texts to 
their pleasure, at the expense of ordinary understandings of a 
principled justice. So what, if higher needs are served – the survival 
of a monetary union on which rational labour markets, taxes and 
transfers, the prosperity of all depend? But as more than one writer has 
replied, are bankers and judges the most competent authorities to 
determine what pensions or wages should be? Certainly, in these matters 
they do well enough for themselves. Is that the most appropriate 
qualification? Fritz Scharpf’s dictum stands: in the EU, it is precisely 
those institutions which have the greatest impact on the daily life of 
most people that are furthest removed from democratic accountability – 
the European Court of Justice, the European Central Bank, the European 
Commission.

Less removed​ is the last of the Union’s institutions, the European 
Council, since it comprises heads of government enjoying majorities in 
genuine parliaments, the product of meaningful elections. As such, it 
has become the peak authority of the Union. Van Middelaar’s Passage to 
Europe is largely the story of its rise to this position, and its claim 
that the Council is now the principal driver of European integration is 
warranted. What it does not do is look beneath the hood. What kind of a 
vehicle has been advancing? That is the subject of the most fundamental 
of all works on the EU of the past decade, Christopher Bickerton’s 
European Integration, whose anodyne title, shared by dozens of other 
books, conceals its distinction, which comes in the subtitle that 
delivers its argument: ‘From Nation-States to Member States’. Everyone 
has an idea what a nation-state is, and many know that 27 countries 
(with the UK’s departure) are member states of the European Union. What 
is the conceptual difference between the two? Bickerton’s definition is 
succinct. ‘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.’ This development first struck him, 
he explains, at the time of the Irish referendum on the Treaty of 
Lisbon. ‘When the No result was announced, members of the Irish 
government expressed a mixture of surprise and embarrassment: surprise 
as they were unfamiliar with the sentiments prevailing within their own 
population, and embarrassment because this compromised many of the 
promises they had made to their peers at previous meetings in Brussels.’ 
(The description is something of an understatement. Spotted outside a 
pub in Dublin that evening, Brian Lenihan, minister of finance at the 
time, was white around the gills.)

How did the transition from nation-state to member state come about? 
After the Second World War – Bickerton follows Alan Milward and John 
Ruggie here – a class compromise between capital and labour was reached 
in Western Europe, taking the organisational form of a corporatist state 
committed to full employment, a range of welfare services and a set of 
transfer payments. Based on steady economic growth, the ideological 
consensus of this period presumed a strong measure of government 
involvement in economic life, and delivered rising popular living 
standards. Yet at the same time ‘a more egalitarian and redistributive 
social contract’ than in the prewar years ‘coincided with a narrowing of 
the political spectrum’: deradicalisation of the left presaging a 
broader depoliticisation, and lack of political experimentation leading 
to the dominance of centrist parties. The general economic crisis of the 
1970s saw the unravelling of this class compromise, as growth sputtered, 
industrial unrest grew and Keynesian ideas gave way to Hayekian or 
Public Choice doctrines dismissive of a social contract. For a time, 
governments continued to try familiar recipes, but by the early 1980s 
neoliberalism had arrived, pioneered by Thatcher, followed by 
Mitterrand’s U-turn, and the crushing of Danish, Belgian and British 
strikes. Liberated from the pressures of organised labour, governments 
converged towards deregulation and privatisation to liberate markets for 
innovation and competition according to the prescriptions of the new 
period. The Single European Act of 1985 marked their transposition to 
the plane of the Community.

The relaunching of the dynamic of integration under Delors was thus the 
outcome of a pattern of domestic political change in which policy 
priorities had become fiscal retrenchment, wage repression and a return 
to financial orthodoxies of classical stamp. Achieving sustained voter 
assent to this course was never easy, but as processes of integration 
deepened, involving ever closer ministerial co-ordination across 
borders, governments could present unpopular measures as necessities 
flowing from the constitution of the Community. From the time of 
Montesquieu and Madison onwards, constitutionalism had involved the idea 
of a self-limitation of the political will to safeguard the liberties of 
the subject: a set of internal constraints – division of powers, checks 
and balances – to insure the nation against tyranny, whether rule by 
monarchs or mobs. In due course such became the standard liberal format 
of the nation-state. With the advent of the European Community, once the 
Court of Justice had succeeded in effectively, if not formally, 
constitutionalising it, member states accepted a set of external 
constraints whose form was radically different. ‘The active subject, 
namely the people, is not doing the binding,’ Bickerton writes:

Rather, national governments commit to limit their own powers in order 
to contain the political power of domestic populations. Instead of the 
people expressing themselves qua constituent power through this 
constitutional architecture, national governments seek to limit popular 
power by binding themselves through an external set of rules, procedures 
and norms. An internal working out of popular sovereignty that serves to 
unite state and society is replaced with an externalisation of 
constraints to national power intended as a way of separating popular 
will from the policy-making process.

By the time the Cold War had ended in 1990, European executives had 
consolidated the transition to member-statehood. With Maastricht and the 
proclamation of monetary union, the constraints this involved naturally 
increased, as would their convenience to governments seeking to impose 
neoliberal ordinances of one kind or another on their citizens. In 
1992-93, Giuliano Amato put through a ‘fiscal correction’ – i.e. an 
austerity package – amounting to no less than 6 per cent of the GDP of 
Italy in the name of the vincolo esterno of Union necessity. When the 
single currency, far from bringing renewed growth and prosperity, 
plunged Italy into prolonged stagnation and regression, and the Eurozone 
as a whole into crisis, the response was not to loosen the corsets of 
memberhood, but to tighten them still further, with the spectacular 
constriction of popular sovereignty in the Fiscal Compact of 2012. In 
this, the external restraints of the Union were for the first time 
written, at German behest, into the internal constitutions of successive 
member states, and their annual budgets, at the traditional heart of 
domestic politics, became subject to invigilation and instruction by 
envoys from Brussels.

Though friction is rarely absent from such visitations, the discipline 
they represent has for the most part come to be accepted as part of the 
natural order of things. ‘For member states,’ Bickerton writes, ‘the 
Eurozone is not just a currency union but also a collective framework 
for co-ordinated macro-economic policy-making to which all belong and 
which in multiple ways is constitutive of their identities and interests 
as member states.’ Not least in shielding them from the intrusion of 
potential protest, as the outcome of expert committees – ratified in 
ministerial conclaves, announced by heads of government and presented to 
citizens at home as faits accomplis – becomes the norm. In this process, 
what sets the EU apart, as a political structure unlike any other, is 
the presumption of consensus and the protocols that follow from that, 
which form the working code of its being. In Brussels, emissaries from 
the different nations confer on questions in their specialised fields, 
developing an esprit de corps and professional identification with the 
technical side of their discussions, in a system designed to exclude the 
unpredictability of public debate or political disagreement. The same 
pattern holds higher up, as decisions are passed to the Council of 
Ministers in any given area, and where required up to the European 
Council itself, where the result is anointed with family photographs and 
unanimous communiqués. The imperative of consensus is all. ‘This 
explains why EU policy-making is so secretive and lacks what is 
elementary to political life at the national level,’ where conflict is 
open and normal, Bickerton notes.

Structurally, he judges member-statehood a ‘fragile and contradictory’ 
social form, at once powerful in immunising national governments against 
domestic social pressures, and weak in lacking any roots remotely 
comparable to the vertical bonds between governments and populations of 
the classical nation-state. The form of national politics to which it 
gives rise, often held to pit a dominant technocracy against an 
oppositional populism, tends rather towards a malign combination of the 
two, with leaders mixing a populist stance on immigration with a 
technocratic approach to the economy, like Sarkozy, or posturing like 
Blair as a pragmatic manager close to the feelings of ordinary people; 
Macron offers the latest version of the blend. The shallowness of the 
attachment of elites to the citizens they represent inevitably 
strengthens their sense of solidarity with one another in the club of 
Union leaders where they gather every two months or so. But the 
fellowship it offers is not, so Bickerton, a stable refuge. Viewed 
historically, member-statehood is a ‘hard but hollow state form’.

Institutionally, however, it has been filling up. Since 2017, the 
European Council possesses for its bimonthly sessions a new 
symbol-saturated seat in Brussels – lantern in shape for the warm glow 
its deliberations radiate, polychrome in fittings for the diversity of 
peoples illuminated by them – where the heads of state and government, 
plus the presidents of the Commission and of the Council itself 
congregate. They in turn are flanked by the Eurogroup of Eurozone 
finance ministers, who meet monthly, and whose president may also attend 
the Council when so invited, as too the high representative of the 
(considerably less important) Foreign Affairs and Security pillar of the 
Union. Though the supreme political authority of the Union, the European 
Council does not itself legislate: laws are lower-order matters for the 
tractations of the trilogues beneath it. Its business is with the big 
decisions of the Union: essentially, crisis management, treaty revision 
and foreign policy. That is, urgent economic and ‘security’ (viz 
refugee) problems; constitutional questions (the word is banned by the 
Treaty of Lisbon, but the thing remains); relations with other powers 
(and the periphery of the EU, where enlargement lingers in the Balkans). 
These are where the ‘alarums’ arise that call for the valiant 
‘excursions’ of van Middelaar’s tales of the Union. Notable examples: 
handling Greek delinquency; utilising Turkish venality; riposting to 
rejection of the Draft Constitution with a recension of the same at 
Lisbon; punishing Russia for annexation; and Britain for desertion.

In principle, the weak link in the Council’s jurisdiction of Chefsachen 
is economic, since it has no authority over the ECB, whose independence 
is absolute and power over the economies of the Union unrivalled. In 
practice, the Eurogroup provides informal liaison, a representative of 
the bank attending its meetings, which are even more confidential than 
those of the Council itself, not least since the presence at them of the 
bank, in derogation of its independence, requires a veil of discretion. 
By training and outlook finance ministers tend to be like-minded, as 
Varoufakis discovered in his brief stint with the Eurogroup. 
Disagreements are more frequent in the Council. Before its meetings, 
participants can stake out contentious positions, while during and after 
them, leaks – typically garbled soundbites for media consumption – will 
report clashes of opinion, victors and losers in argument, to the taste 
of the leakers. But the proceedings themselves remain concealed from the 
public, and issue in decisions which are virtually always announced nem 
con, in keeping with common practice across the institutions of the EU.

In the case of the Council, more is at stake in such displays of 
unanimity than the generic omertà of the European political class. For 
the truth behind them is uncomfortably at odds with the formalities of 
its composition, in which all member states are technically equal, and 
can block decisions in conflict with what they believe to be vital 
national interests. The reality, of course, is that with vast 
disparities between countries ranging in population from eighty million 
to half a million, two states – Germany and France – de facto command 
the proceedings by reason of their size and power. Of the pair, heirs of 
the treaty that de Gaulle sealed with Adenauer, Germany is now the 
stronger and larger economically. But though this advantage makes it 
primus inter pares, its margin of superiority, and relative weight 
within the Eurozone as a whole, is too limited to give it the hegemony 
its bolder theorists claim. France remains militarily stronger and 
diplomatically more seasoned, in a relationship on which each depends in 
equal measure. Since they do not always agree, and when they do, may not 
always insist, not every decision of the Council is a translation of 
their will. Simply, without need for any hint of a veto, no proposition 
that is not to their liking has any chance of passage, while any 
proposition behind which they unite with joint force may be inflected, 
but will not be resisted by the other two dozen or so states of the 
Council. The Treaty of Maastricht was the fruit of a pact between 
Mitterrand and Kohl; the Treaty of Lisbon, between Merkel and Sarkozy; 
the current Covid Package, between Macron and Merkel. In each case the 
initiative came, unstoppably, from Berlin and Paris. In each case, the 
details were adjusted to accommodate lesser states, without its 
direction being altered.

The​ only occasion when a major proposition on which Germany and France 
insisted met intransigent opposition, the Fiscal Compact vetoed in 2011 
by Britain, lit up the realities of the structure of power in Europe. 
Without delay, Berlin and Paris simply bypassed the Council with an 
international instrument outside the legal framework of the EU, the 
Treaty on Stability, Co-ordination and Governance, to which all the 
other member states dutifully signed up. The effect was exactly the 
same. Cameron was left to complain that Merkel and Hollande had not even 
bothered to respect appearances, stitching together this arrangement on 
Union premises in Brussels. The lesson is clear. Should the two European 
hegemons encounter – post-Brexit – similar obduracy in a matter to which 
they attach importance, they can respond with a bilateral (or 
multilateral) international treaty, making an end run round the obstacle 
in the same way. It is scarcely a coincidence that Jean-Claude Piris 
ended his 2012 book, The Future of Europe, by pointing out how 
convenient and fruitful the resort to such ‘additional’ treaties might 
be. As things stand, however, with Britain out of the way, there is 
little call for the device. One incongruous fact alone is enough to 
bring home the outlook, and power, of the Franco-German duo. There have 
been three presidents of the European Council since the office was 
created in 2010. Of these, two have been Belgian – a country with just 
over 2 per cent of the population of the Union. Why? Because 
inconspicuous politicians of a weak state, handily placed between France 
and Germany, can be relied on not to cross either, but to help out the 
good intentions of both.

It has​ often been remarked that the institutional ensemble of the EU is 
sui generis as a polity, a creation more easily defined negatively than 
positively. It is not, obviously enough, a parliamentary democracy, 
lacking division between a government and an opposition, competition 
between parties for office, or accountability to voters. There is 
neither a separation between executive and legislative powers, along 
American lines; nor a connection between them, along British or 
Continental lines, in which an executive is invested by an elected 
legislature to which it remains responsible. Rather it is the inverse 
that holds: an unelected executive holds a monopoly of legislative 
initiative, while a judiciary, self-invested with an independence 
subject to no constitutional audit or control, issues decisions that are 
effectively unalterable, whether or not they conform to the treaties on 
which they are nominally based. The rule of the Union’s proceedings, 
whether they are presided over by judges, bankers, bureaucrats, deputies 
or prime ministers, is secrecy wherever possible, and their outcome, 
unanimity.

In the words of Majone, its most clear-sighted liberal critic, the world 
the Union inhabits is one in which ‘the language of democratic politics 
is largely unintelligible’. Unique in modern constitutional history, he 
observes, ‘the model is not Athens but Sparta, where the popular 
assembly voted yes or no to the proposals advanced by the Council of 
Elders but had no right to propose measures on its own account.’ The 
political culture of Union elites resembles that of the European 
Restoration and its sequels, before the reforms of the franchise in the 
19th century, ‘when policy was considered a virtual monopoly of 
cabinets, diplomats and top bureaucrats’. The mental and institutional 
habitus of Old Regime Europe is still alive in the ‘supposedly 
postmodern system of governance of the EU’. In sum, the order of the 
Union is that of an oligarchy.

The historically minded can reply, yes, but the Restoration brought 
peace to Europe that lasted for forty years, or on a looser reckoning a 
century. Hasn’t European integration, however undemocratic in structure, 
achieved the same for three-quarters of a century, after the terrible 
internecine wars of 1914 and 1939? In the official credo of the EU, 
probably no other claim is repeated so insistently, and movements 
questioning the Union are frequently attacked as carriers of the 
bacillus of future wars. The truth, of course, is that after 1945 there 
was never any risk of another outbreak of hostilities between Germany 
and France, or any other of the countries of Western Europe, because the 
Cold War made the whole region an American security protectorate. Nato, 
not the EEC, laid the military conflicts of the past to rest. As Albert 
Hirschman once caustically put it: ‘the European Community arrived a bit 
late in history for its widely proclaimed mission, to avert further wars 
between the major Western European nations.’ A beneficiary of the Pax 
Americana rather than a progenitor of it, the Union faced its first test 
as an actual keeper of peace in Europe after the Cold War. It failed 
miserably, not preventing but stoking war in the Balkans, as Germany 
backed Slovene secession from Yugoslavia, the starting gun for 
successive murderous conflicts that the EU, dragged in the wake of 
Helmut Kohl, proved incapable of moderating or bringing to halt. It was 
once again not Brussels but Washington that finally settled the fate of 
the region. Even the enlargement of the Union to include the former 
countries of the Warsaw Pact, its major historical achievement, followed 
in the footsteps of the US, their inclusion in Nato preceding their 
entry into the EU.

Human rights are another point d’honneur in the public relations 
repertoire of the Union. The Council of Europe, which contains twenty 
states not part of the EU, including Russia, Turkey, Georgia and 
Azerbaijan, established a Convention on Human Rights and a court to 
protect them back in 1953, whose provisions were essentially reproduced 
in 2000 in the EU’s Charter of Fundamental Rights, much as the EU would 
purloin the Council’s flag as its own. As elsewhere, proclamation and 
observation of such rights are not the same. Ordinary police brutality 
is certainly less than in the United States, where prison conditions are 
also worse, and inmates far more numerous. But this scarcely 
distinguishes the EU, the same holding for Canada or the countries of 
Western Europe that don’t belong to the Union. More pointedly still, 
when America required European co-operation in renditions, EU members 
complied with assistance in kidnappings and supply of torture chambers 
on Union soil, documented and denounced by a Swiss prosecutor to the 
Council of Europe, without a finger being lifted by the EU to bring 
those responsible to book. Where infractions of its charter come from 
governments it dislikes, as currently in Hungary and Poland, the Union 
will threaten sanctions. Where they come from governments with which it 
wishes to keep on good terms, it will turn a blind eye, or seek to 
render them acceptable, even if the infractions are far more extreme – 
as in the long-standing military occupation and ethnic cleansing of 
Union territory in northern Cyprus; let alone in Eretz Israel, early in 
the history of the Community invited to consider membership, and more 
recently described by the Union’s first high representative for foreign 
affairs as an honorary member. As for refugees, the record of European 
inhumanity in the Aegean and Libya speaks for itself. Migration has 
largely become a security question.

Solidarity, another important term in the EU lexicon, refers to two 
features of its self-image. The first emphasises the structural and 
cohesion funds, the 30 per cent of the Commission’s budget dispensed to 
poorer countries and regions of the Union for transport, environmental 
and other projects. Though not always well spent, these are genuinely 
redistributive and have historically had a significant impact on the 
biggest beneficiaries: Spain, Greece, Portugal and Ireland. Larger is 
the Common Agricultural Policy, which disburses more than 40 per cent of 
the budget and is regressive, with the great bulk of the money going to 
the richest farmers, above all in France, though titled millionaires in 
Britain have collared the largest bonanzas of all. Combined, the equity 
effect of the two kinds of expenditure is probably neutral, possibly 
negative. The second sense of solidarity refers to European ‘social 
policy’, broadly defined as measures to reduce the vulnerability of 
wage-earners and their families, and less well-off citizens in general, 
to the vagaries of the market. Wolfgang Streeck has traced the evolution 
of these from the 1960s to the present. Originally, they comprised 
attempts to alter capital-labour relations by promoting industrial 
co-determination that would give workers rights of representation on 
company boards, resisted by business. The Vredeling Directive giving 
form to these hopes was ditched after the passage of the Single European 
Act, and attention shifted to questions of health and safety and equal 
opportunity.

At the insistence of Delors, proclaiming the need for a Social Europe, 
the Monetary Union created at Maastricht was accompanied, in the thicket 
of adjacent and subsidiary clauses in the treaty, by a Social Chapter 
promising enhancement of labour rights, from which Britain opted out. So 
little came of this piece of symbolism, Streeck remarks, that its later 
adoption by New Labour ‘did nothing to prevent the rise of inequality, 
the decay of collective bargaining and the deterioration of employment 
conditions in the UK over the years that followed’. EU-wide, these were 
years in which businesses successfully attacked public service provision 
in the name of competition law, while the Court of Justice dealt 
successive cold blows to trade-union rights. The current European Pillar 
of Social Rights, announced in 2017, does not redress the trend: as a 
uniform set of injunctions amid huge differences between member states, 
it is largely a dead letter. In public and academic arenas, Streeck 
comments, talk of a Social Europe has faded as the EU becomes identified 
primarily as a vehicle of ‘universal peace, human rights and civilised 
speech, rather than as an alternative to unbridled capitalism’. His 
conclusion: ‘What seems clear is that the project, reaching back to the 
1970s, of a supranational European Welfare State giving political 
definition to a “European social model” has come to an end.’

What​ about European economic growth, in that case? While the GDP of 
Western Europe grew at some per 2 per cent a year between 1900 and 1950, 
it bounded forward at 5 per cent a year from 1950 to 1973, a speed 
without precedent in its history. But how far was that due to 
integration? In those years, West Germany and Italy grew by 5 per cent 
annually, France 4 per cent, Belgium 3.5 per cent and the Netherlands 
3.4 per cent. But outside the ECSC and EEC, Austria averaged an annual 
growth rate of 4.9 per cent, Spain 5.8 per cent, Portugal 5.9 per cent 
and Greece 6.2 per cent. Pent-up prewar demand, state intervention and 
international co-operation all played a role. Given that the boom 
started a decade before the EEC, integration alone cannot explain these 
fast growth rates. The EEC’s impact on the boom has never been subject 
to research of real accuracy. But if it existed, in these years it was 
small and may even have been negative. In Patel’s view of this period, 
there was ‘virtually no public pressure to present a clear account of 
the economic achievements of the integration process’. The Community was 
not at this stage particularly neoliberal, as sometimes later alleged. 
While competition policy may have been shaped by German ordo-liberals in 
the 1960s, their impact was still highly selective, without incidence on 
most of its budget, which was dominated by concessions to French farmers 
they abhorred. Structurally, European integration was ‘born 
technocratic’, as it has remained. For its citizens, the Community was 
what Patel terms an ‘adiaphoron’: that is, according to Stoic 
philosophy, ‘a matter having no moral merit or demerit’. Such was 
popular indifference to it that by the end of the 1960s only 36 per cent 
of its inhabitants could correctly name all six members of the EEC.

How has the Eurozone fared since 1973? In 2000 the Lisbon Agenda of the 
European Council promised productivity gains of 4 per cent a year, about 
double the US rate. In reality, they increased at somewhere between 0.5 
and 1 per cent a year. As for overall growth, here are the figures.

gdp growth in the euro zone

Years    Average GDP growth
1973-79    2.7
1984-94    2.5
1994-98    2.3
1999-2003    2.1
2004-08    1.8
2012-19    1.2

In other words, a steady decline since 1973, even before the collapse of 
2020, when in the first six months of the year, GDP fell 15.7 per cent. 
As for the contribution of integration to the record, Barry Eichengreen 
and Andreas Boltho – two economists committed to the benefits of 
European unity – reckoned in a 2008 paper that over the long run, from 
the time of the ECSC to that of the EMU, ‘European incomes would have 
been roughly 5 per cent lower today in the absence of the EU.’ Hardly a 
momentous achievement. Nor has intra-EU trade increased greatly since 
the Union, the over-valuation of the euro favouring imports from the US, 
China and other countries, while diverting trade from within the EU. 
More generally, the socio-economic and geopolitical heterogeneity of the 
fifteen members of the Union in 1995, further stretched by the arrival 
of another twelve over the next decade or so, made it decreasingly 
possible to arrive at common Pareto-efficient decisions. In practical 
terms, enlargement to the East rendered ‘Social Europe’ as conceived by 
Delors impossible, since the average income of the new members of the 
Union was only 40 per cent of the average of the fifteen West European 
members. EU resources were insufficient to close the gap.

The contrast between West and East has not been the only fracture in the 
Union. For Bolkestein on the right, the single currency was afflicted 
with a birth defect. Its fatal weakness, he told an audience in 2012, lay in

trying to serve two groups of countries that differed greatly in their 
economic culture, lands of the North that respected rules and discipline 
and lands of the Mediterranean that sought political solutions to 
economic problems. The first group – Germany, the Netherlands, Finland 
and others – wanted solidity; the second wanted solidarity, which means 
other people’s money. [Laughter in the auditorium. Bolkestein did not 
laugh.] That could not and did not go well. Herman Van Rompuy was right 
to call the euro a sleeping pill: the Mediterranean countries could 
enjoy artificially low interest rates, which they did abundantly, 
dreaming of a dolce far niente.

For Claus Offe, on the left, it is clear that ‘the euro has rendered 
European democratic capitalism more capitalistic and less democratic,’ 
disembedding financial markets from states and exposing states to their 
vicissitudes, in a system that Offe judges no more favourably, if for 
opposite reasons, than Bolkestein. ‘The euro under the ECB’s regime 
over-generalises monetary policy across widely diverging economies and 
their given position in the business cycle. Instead of “one size fits 
all” we are left with a situation where “one size fits none” due to the 
institutional incapacity of monetary policy to respond to the specifics 
of countries and their situations.’ No sooner has he casually said this, 
however, than he soberly retracts it. For there is one country of which 
this judgment does not hold: his own. Given the huge advantages that 
Germany derives from the euro, Offe writes,

any conceivable German government will do everything in its power to 
keep the common currency intact by avoiding the default of any member of 
the Euro club. For this currency allows the German government to live in 
an ideal world where pleasure is not followed by regret, meaning that an 
export surplus is not followed, and its continuation thus limited, by 
the appreciation of the currency of the country.

Matters are otherwise, of course, on the receiving end of such 
appreciation. The Southern and Eastern belt of states are paying the 
price of a misconceived currency union that cannot now be reversed. Even 
if ‘the introduction of the euro into a fundamentally flawed currency 
zone was a huge mistake, the same applies by now simply to undoing that 
mistake,’ since the dissolution of the Eurozone would be ‘equivalent to 
a tsunami of economic as well as political regression’. Hence the ‘trap’ 
Europe is in – it can neither move forwards, nor backwards.

Fritz Scharpf, to whom Offe looks for counsel, is less categorical. Also 
as of 2015, he concluded that the EU decision to rescue the single 
currency rather than dismantle it was creating an economically 
repressive and politically authoritarian euro regime that was enormously 
counter-productive. By forcing member states in trouble to adopt fiscal 
austerity and internal devaluation, reducing labour costs with the 
beggar-my-neighbour effects of a permanent downward pressure on wage 
incomes, social transfers and public transfers, official policy was 
‘utterly devoid of democratic legitimacy’. In future, Scharpf argued, 
much of the Community’s acquis would have to be de-constitutionalised, 
returning it to the ordinary conditions of legislative re-examination 
and revision. For the moment, no responsible politician regarded this as 
feasible. But if a second big shock, comparable to the impact of the 
global financial crisis, hit the system, European democracy would have 
to be rebuilt from the bottom up, restoring the necessary barriers to 
market interference with it at both supranational and national levels.

The last and bleakest word comes from Dani Rodrik. Might the closest 
historical analogy to the euro, as we know it today, be the Gold 
Standard as it existed prior to the First World War, before there was 
any developed welfare state or counter-cyclical policies? Both of these 
now exist and complicate the tasks before the Union. Can democracy, 
sovereignty and globalisation be happily combined? Regrettably, an 
EU-wide democracy does not exist, and the reforms adopted since the 
crisis of 2008 – banking union, stricter fiscal oversight – have made 
the Union more technocratic, less accountable and more distant from 
European electorates. What American examples show is that European 
elites must make a choice, opting either for political union at the cost 
of national sovereignty, or for national sovereignty at the cost of 
political union. Intermediate solutions – a little democracy at national 
level, a little more at EU level – won’t work. The reality, Rodrik 
concludes, is that it may be too late to take the first path, in the 
hope that a European demos will ultimately emerge to correspond with a 
European federation. If that is so, it is hard to see how a single 
currency can be reconciled with multiple democratic polities. It may be 
better to jettison the hope that one day economic union will prove 
compatible with democracy as eventually reconstituted, and ask instead 
what degree of economic integration is compatible with democracy as 
currently instituted.

So if we look for silver linings in the overall performance of the EU 
since Maastricht, it is not easy to find them. International peace, 
human rights, social solidarity, economic growth: the cupboard is pretty 
bare. Yet, as defenders can point out, it is not completely empty. Two 
features of the EU that make a genuine difference to the lives of many 
of its citizens are plain. The first is the convenience of travel 
without a passport in the Schengen zone, which still excludes Bulgaria, 
Romania, Croatia, Cyprus and Ireland of the EU, but includes Iceland, 
Norway, Liechtenstein and Switzerland from outside the EU. More 
generally, there is the variety of products on supermarket shelves that 
followed the single market, the Union interpellating its citizens as 
consumers rather than political subjects. Loss of low-key facilities of 
this kind would not pass without protest; habit is a powerful force in 
human affairs. In this century, too, political expectations in advanced 
societies have declined nearly everywhere. If the Union’s advertisements 
for itself, on which it spends a fortune in euros every year, meet no 
more than a listless acquiescence, rather than active endorsement from 
the populations over which it presides, that is sufficient for its 
purposes. Fear of the unknown is the more important integument.

Some of the books consulted in the writing of this essay:

Project Europe: A History by Kirin Klaus Patel (Cambridge, 2020)

Juges et avocats généraux de la Cour de Justice de l’Union européenne 
(1952-1972): Une approche biographique de l’histoire d’une révolution 
juridique by Vera Fritz (Vittorio Klostermann, 2018)

Vichy dans la ‘solution finale’: Histoire du commissariat général aux 
questions juives (1941-44) by Laurent Joly (Grasset, 2006)

Servir l’état français: L’administration en France de 1940 à 1944 by 
Marc Olivier Baruch (Fayard, 1997)

‘Michel Gaudet, a Law Entrepreneur: The Role of the Legal Service of the 
European Executives in the Invention of EC Law and the Birth of the 
Common Market Law Review’ by Julie Bailleux (Common Market Law Review, 
Vol. 50, 2013)

The European Court’s Political Power: Selected Essays by Karen Alter 
(Oxford, 2009)

‘Establishing a Constitutional Practice of European Law: The History of 
the Legal Service of the European Executive, 1952-65’ by Morten 
Rasmussen (Contemporary European History, Vol. 21, 2012)

Politik und Justiz by Hans Peter Ipsen (Hanseatische Verlagsanstalt, 1937)

Europa und das 3. Reich: Einigungsbestrebungen im deutschen Machtbereich 
1939-45 by Hans Werner Neulen (Universitas, 1987)

Great Judgments of the European Court of Justice: Rethinking the 
Landmark Decisions of the Foundational Period by William Phelan 
(Cambridge, 2019)

The Constitution of European Democracy by Dieter Grimm (Oxford, 2017)

The Court of Justice of the European Union as an Institutional Actor: 
Judicial Lawmaking and Its Limits by Thomas Horsley (Cambridge, 2018)

‘Constitutionalism and the Many Faces of Federalism’ by Koen Lenaerts 
(American Journal of Comparative Law, Vol. 38, 1990)

Brokering Europe: Euro-Lawyers and the Making of a Transnational Polity 
by Antoine Vauchez (Cambridge, 2015)

The Future of Europe: Towards a Two-Speed EU? by Jean-Claude Piris 
(Cambridge, 2012)

European Civil Service in (Times of) Crisis: A Political Sociology of 
the Changing Power of Eurocrats by Didier Georgakakis (Palgrave 
Macmillan, 2017)

Restructuring Europe: Centre Formation, System Building and Political 
Structuring between the Nation-State and the European Union by Stefano 
Bartolini (Oxford, 2005)

Europe as the Would-be World Power: The EU at Fifty by Giandomenico 
Majone (Cambridge, 2009)

Rethinking the Union of Europe Post-Crisis: Has Integration Gone Too 
Far? by Giandomenico Majone (Cambridge, 2014)

European Integration: From Nation-States to Member States by Christopher 
Bickerton (Oxford, 2012)

Europe Entrapped by Claus Offe (Polity, 2015)



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