UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Danny Nicol: Is Another Europe possible?

Danny NicolIs the European Union an empty vessel into which any political content may be poured? Can it accommodate not just neoliberal conservatism but also Keynesian social democracy, hard-line greenery and even pro-nationalisation democratic socialism? A new UK campaign, “Another Europe is Possible”, would have us believe this, and is touting for votes in the EU referendum on the basis that the Union can be changed into a more socialistic entity, “not [by] a network of politicians but grassroots activists across the UK”. The same optimism is apparent in the Democracy in Europe Movement 2025 (DiEM 2025) in which Mr Yanis Varoufakis looms large. With the ferocity of tigers protecting their young, these progressives attack those who single out the EU as a hotbed of neoliberalism. ‘Can you name an institution not dominated by neoliberalism?’ argued Marina Prentoulis of Syriza UK at the launch of “Another Europe”: ‘National governments are pushing a neoliberal agenda too’.

It speaks volumes that Syriza, a party implementing austerity at the EU’s behest, is accorded star billing in this supposedly anti-neoliberal venture. Overlooked are the constitutional differences between the EU and most European states. The possibilities for progressive or socialistic advance in any political community depend to a significant extent on the constitutional structure of that entity. If those seeking such advance are serious about achieving a more equal society, they need carefully to weigh up the institutional potential of any given polity. In fact in the context of the European Union there has been no such debate on the British Left. This is hardly surprising. The long record of failure of British socialists may be attributed at least in part to a perennial unwillingness to engage seriously in questions of strategy.

Yet outside the fairyland inhabited by “Another Europe is Possible”, constitutions do matter. Take the USA for example: a country with a constitution which is difficult to amend, save by judicial reinterpretation. Its system of government is famously one of checks and balances, though with normally no check on the Supreme Court beyond its sense of self-restraint. As a result progressivism has been constantly placed at a disadvantage. The New Deal, public healthcare and gun control have all in turn been dogged and retarded by various aspects of the American constitution. However, the US system of government shines as almost a beacon of hope by comparison with EU structures.

Treaty revision

This is because the EU Treaties not only contain procedural protections for capitalism, as is the case in the US Constitution: they also entrench substantive policies which correspond to the basic tenets of neoliberalism.  Let me give a few examples. First, Articles 107-8 TFEU empower the European Commission to vet state aids for their compatibility with the single market. This includes state aids to the public sector. The system also allows private corporations to challenge grants of state aid on competition grounds. Secondly, free movement provisions of the Treaties have been interpreted by the Court of Justice as prohibiting industrial action which “disproportionately” obstructs the free movement of goods, services, capital and workers – see the Viking and Rüffert rulings of the EU’s Court of Justice. Thirdly Article 49 TFEU grants companies the right of freedom of establishment. This includes the right to establish branches and subsidiaries in other Member States. It is difficult to imagine how nationalisation of branches and subsidiaries of companies based in other Member States would constitute a lawful limitation on freedom of establishment. For good measure Article 106 TFEU gives corporations the right to sue governments whenever any public monopoly infringes EU competition rules – including within the NHS.

None of this would matter very much if these provisions were easy to amend or repeal. However, being Treaty provisions, these policies may only be changed by agreement of all Member States. The methods of Treaty amendment are laid down in Article 48 TEU. Under the ordinary revision procedure the Member States must agree by common accord the amendments to be made to the Treaties. Under the simplified revision procedures (used to revise Union policies) the European Council shall act by unanimity. In each case the changes must be confirmed by all the Member States in accordance with their respective constitutional requirements. Crucially, irrespective of which procedure is used, it only takes a single national government to veto treaty change. One would have to await a complete absence of neoliberal governments in order to change the Treaties in a socialistic direction. Such is the stuff of fantasy.

EU legislation and the TTIP

It might be thought that outside the realm of Treaty revision, life for progressives might be easier. With friends in the European Parliament and some in the Council, EU secondary legislation might somehow provide a means of socialistic advance. I am not so confident.

Take the privatisation of public utilities. The socialist position would surely be that Member States should determine the size of their own public sectors. However, the EU liberalisation legislation tends to consolidate privatisation. Nationalising sectors such as gas, electricity, telecommunications and postal services is forbidden by giving rights of market access to corporations.   This prohibits the sort of extension of public ownership brought in by the 1945 Labour government. New public enterprises have to compete with private firms in a capitalist market. But this arrangement is not socialist: it equates to the “competitive public ownership” craved by Anthony Crosland in his efforts to wean the Labour Party onto capitalism after the 1945 era (See C.A. Crosland, The Future of Socialism, London: Constable, 2006).   Publicly owned companies are thereby compelled to act more as if they were private companies, particular when the Treaty provisions on state aids are taken into account. Similar legislation on railways is presently going through the EU institutions.

It might be argued that liberalisation legislation is the product of EU democracy and could be repealed by democratic means. However the Council and European Parliament do not operate in an ideologically-impartial constitutional environment. Whilst the liberalisation measures were enacted by qualified majority voting on the Council, their repeal would be harder to achieve, because of the complication of identifying the correct legal base for any such legislation. Imagine that a national government sought to introduce EU legislation to allow all Member States a free choice over the public or private ownership of their energy, postal, telecommunications and rail sectors. It would have to rely on the Commission – the very architect of EU liberalisation – putting forward a proposal to the Council and Parliament. Furthermore the only legal base which is in any way credible would be Article 352 TFEU which requires the Council to act unanimously. We are back to square one: a single national government can veto socialistic advance.

Another measure which animates socialist circles is the TTIP, the Transatlantic Trade and Investment Partnership currently being negotiated with the USA. There is concern that TTIP will enable companies to sue governments where state measures harm profits.   Assuming TTIP is agreed before the next UK general election, the prospects of the EU discarding it rely on even more outlandish fantasies. Assuming withdrawal is permissible, there is no provision in the TEU and TFEU specifying how the EU goes about withdrawing from a treaty. Would one have to fall back on Article 352 TFEU, with its unanimity requirement, once again allowing a single neoliberal government to save the EU’s adhesion to the TTIP? It may be that the only way to discard TTIP is – horror of horrors – to violate international law, something far easier for a state to undertake than for the EU.

Conclusion

There have always been parts of the British Left which have elected to deny the significance of constitutional provisions in making their strategic choices. Instead they have clung to a belief in spontaneous combustion. With the zeal of born-again evangelistic sects (with whom they have much in common), they convince themselves that the people will somehow rise up from below and sweep aside all obstacles to social justice, including constitutional ones. The passage of decades, even centuries, when this doesn’t happen does nothing to dampen their faith.

Against this backdrop whilst there can be no objection to people pressing to make the EU more left-wing, such campaigners bear the responsibility of explaining how they will achieve their objectives in the face of the requirements of unanimity and common accord. As it presently stands, these requirements make substantial socialistic advance virtually impossible to achieve. Unless those who seek such change face up to the constitutional obstacle that confronts them, the only progressive reforms to materialise will be confined to the realms of their own minds.

Danny Nicol is Professor of Public Law at the University of Westminster.

(Suggested citation: D. Nicol, ‘Is Another Europe Possible?’ U.K. Const. L. Blog (29th Feb 2016) (available at https://ukconstitutionallaw.org/))

12 comments on “Danny Nicol: Is Another Europe possible?

  1. Alessandra Asteriti
    March 10, 2016

    I would have to agree with everything, but with a small proviso: while I am of course against the TTIP, and I teach investment law, let’s not forget that all countries in Europe have been enthusiastically concluding bilateral investment treaties, including the deleterious dispute settlement provisions, for years and years, without a peep of disapproval from the public and the academics, a part from isolated examples. I guess the difference was that these treaties protected UK investors and allowed them to sue developing countries, certainly lacking the resources to defend themselves. Only when the shoe is in the other foot, as it were, and the possibility of US investors suing the UK, or the EU, becomes likely, the public and the academics discover the evil nature of investment disputes. Where was everybody, I wonder, when UK investors were suing Tanzania for problems related to the provision of water services in Dar es Salaam, the privatisation of which Tanzania had been forced to implement in order to receive assistance from the World Bank, the same World Bank which provides the institutional structure for investment disputes through ICSID? Nowhere, that’s where. Well, now the UK can be Tanzania for once.

    • Jon
      April 5, 2016

      Yes, let’s only feel sorry for the victims of injustice, who will be just as innocent inside the UK and Europe as in Tanzania, when they are poor and defenceless.

  2. Steve Gwynne
    March 22, 2016

    Thank you very much for posting this. Thankfully it confirms my own research/intuition considering that my time/energy constraints have not allowed me to go as deep as you.
    I have friends on the Left apart from the social democrats within the Labour P and Green P who argue now is not the right time to leave the EU because by leaving now, the Tories can maliciously change UK law and legislation that previously related to the EU in favour of a corporate neoliberal agenda.
    What would your response be to this claim?
    Thanks.

    • Jon
      April 5, 2016

      The Tories can only do whatever they want insofar as they retain the appearance of public confidence and approval for those measures. In all likelihood, there will be a new leadership election for the Tories in the event of a Brexit. Whoever wins that election (probably someone that was pro Brexit) will have to tread carefully.

    • Amanda Lothian
      April 28, 2016

      we are only going to get one chance to leave, there will be no “right time”, there is only this time

  3. Pingback: Whose Europe? Theirs or Ours? | rs21

  4. Geoff Turner
    May 27, 2016

    Thanks for a useful article. I keep asking left remainers to explain how they envisage reversing neoliberal EU without achieving 28 simultaneously elected left socialist governments , but no answer so far. I guess if you are a revolutionary socialist (which I don’t dismiss as easily as you do), it could be argued that EU treaties are irrelevant to workers seizing banks and factories. However, most prominent “Better Europe” supporters are left social democrats (reformists), who have to work through current parliamentary routes. That looks like checkmate in the EU.

  5. Frank
    May 29, 2016

    Speakers at today’s Another Europe event are well aware of these constitutional matters, and several have direct experience of working in that environment. But lack your pessimism about change.

    Leaving the EU will not leave us where we would have been had we never joined.

    UK’s unwritten constitution is no constitution at all. It’s given us a desperately arrogant xenophobic government formed of a deeply divided party on 24% of electorate. They’re gerrymandering the constituencies and could mount a de-facto coup very easily if they found it necessary – they could scrap the 5 year limit on parliaments as easily as they brought in fixed terms.

    A brexit votè will be interpreted as endorsement of everything ukip stands for and will rapidly be followed by a bonfire of human, civil and worker rights – neoliberalism on steroids.

    There isn’t a neat little England way out of this. Diverse constitutions support similar realities but maybe the nearest thing UK has to a constitution at present is the EU one however awful.

    After the referendum whatever the outcome we on the left will have to come together internationally – acrimonious recriminations will do us immense damage.

    • Steve Gwynne
      May 30, 2016

      The Brexit Party is far more than the far right. I get this alot from eu idealists. Their whole rationale is based on political prejudism and a prejudism that is deeply tribalistic and reactionary to a point that all Tory and all UKIP members are stereotyped with the same xenophobic brush.

      As such, eu idealists prefer eu totalitarianism over and above national policy independance and the national democracy that both underpins and decides it. Self determination is enshrined in international human rights law and so ironically the reactionary positioning of eu idealists is to oppose international human rights law in favour of totalitarianism and then deride those that choose a different perspective as far right when the natural home of the far right is totalitarianism. Talk about the kettle calling the pot black.

  6. Geoffrey Turner
    May 30, 2016

    “After the referendum whatever the outcome we on the left will have to come together internationally – acrimonious recriminations will do us immense damage.”

    Frank, I agree with you entirely on this, even though I support lexit. Locally, we have already organised one debate which included socialists from both sides, and have 2 more (one pro, one anti) coming up. I am sure that locally we will work together fine after the referendum.

  7. Sean Brogan
    June 14, 2016

    Excellent contribution to what is at times, very ill-tempered!

  8. John Palmer
    June 18, 2016

    I think Danny’s thoughtful article misses some crucial points. There is no doubt that some of the major piece of EU wide “neo-liberal” policies make it very hard for individual member state governments to unilaterally pursue different policies. But if a sufficient critical mass of states support alternative policies, that can over ride existing legislation. Examples of this can be found in the way that EU social and environmental laws even now qualify, restrain and sometimes directly impede the operation of “free market” legislation. By the way there is no prohibition on nationalised industries in one member state taking advantage of the single market to acquire private sector businesses in another.

    There is an obvious need for socialists, greens and other progressive to work on European trans-national forms of public ownership and control. Many, even beyond the left, throughout the EU now believe that a return to economic growth urgently demands massive, coordinated EU wide public investment in economic and social infrastructure. There is no reason why the European left should not now be working on new forms of European public ownership to drive such an investment led recovery.

    The first priority, in my view, must be the convening of an EU wide convention of trade unions and civil society organisations to work on such a strategy. Brexit would mean not only a lurch further to the right in British (mainly English) politics but it would also fatally marginalise the influence of British trade unions in the European Trade Union Confederation but also that of British NGOs, regions, and other civil society bodies in the existing EU wide bodies they are part of.

    Finally, as always, political possibilities, are created from effective grass roots struggle. Only 25 years ago Thatcher protested against Jacques Delors and his allies in Brussels “pushing socialism through Britain’s back door when I had shut the front door.” A gross exaggeration of course. But so too is the claim that nothing can be done to challenge a decrepit and declining capitalism across our continent.

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This entry was posted on February 29, 2016 by in European Union and tagged , , , , , .
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