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Offline the leveller

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In an earlier post, I mischievously mooted the notion that the EU could radically change its vision and policies in response to Brexit and thus induce a change of heart on the part of the British electorate. Fanciful Sunday-afternoon musings of a diehard confederalist in the Gaullist mode (to which description I will readily and unashamedly own up)? Surely the EU will not abandon some of its central tenets because of one obstinately recalcitrant member? Well, let’s examine the issue a little more deeply and speculate whether in fact such a scenario is as unimaginable as it may seem to Brexiteers and Remainers alike.

First of all, it is becoming clear that Brexit is far from being a phenomenon restricted to perfidious Albion. Nationalism – mostly of the radical Right-wing variety – has been rearing its head within the EU with increasing electoral success for well over a decade now. Its most resounding knocks on the door of the Europeanist consensus that had prevailed up to that point in most EU states came when (a) Jörg Haider’s Freedom Party won the Austrian election in 1999 and was only refused power because of the threat of exclusion from the EU, and (b) the French National Front caused a major shock by ending runner-up in the 2002 Presidential election. (In fact, the narrowness of the referendum vote on the Maastricht Treaty, mainly caused by the FN, in 1992 had already served notice that a major shift in public opinion in this direction was imminent. And as matters stand at present, Hungary has elected Europe’s most openly nationalist leader yet, Marine Le Pen is making a serious bid for the French Presidency outright, and the German Alternative für Deutschland is emerging as the most serious threat to Angela Merkel’s power base. One policy all these parties and personalities have in common is a marked antipathy towards the EU, particularly as regards the free movement of persons.

Secondly, it is frequently forgotten that we have in fact passed this way before. In 1965, when the then-EEC was barely seven years old, the Council of Ministers – fully in accordance with the EEC Treaty – moved towards qualified majority voting to replace the unanimity rule which had applied until then. More particularly this related to the Common Agricultural Policy (CAP). The inevitable result would have been to strengthen the European Commission and Parliament (being the federalist aspects of the EEC institutional structure) at the expense of the intergovernmental Council of Ministers. This was not to the taste of the then French Government in general, and President De Gaulle in particular, and resulted in the “empty chairs” policy by which France simply refused to take up its seat within the Council and thus precipitate a crisis which threatened the EEC’s very existence. This caused the EEC states to reach a compromise merely for the sake of “keeping the show on the road”. In most textbooks on EU law and policy you will see this described as the “Luxembourg accords”, which gave any member state the power to veto EU legislation on “vital national issues”. This in fact a highly euphemistic, nay utterly misleading, version of the actual contents of the “accords”. Yes, quotation marks are in order here because it was not so much an agreement as a bland statement of fact that France was against the proposed changes. To quote from the actual text of the statement:

“…. The French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached”

This can hardly qualify as an “agreement”, yet it appeared to be the only way in which the EEC could continue to exist at all (it should be recalled that the EEC only consisted of six members, and that the withdrawal of France from its main decision-making organ effectively spelt its end as an organisation). In other words, the EEC allowed a member state to flout EEC law and, on its sweet own, rewrite the change in decision-making procedures to which it had agreed with it signed the original Treaty of Rome. However, the organisation continued to exist, which was the main object of this entire shoddy exercise.

So could history repeat itself in order to save the EU from a fate which is staring it in the face if the nationalist and anti-EU trend, of which Brexit is only the most spectacular and recent manifestation? More particularly could it prompt a radical change in what it constantly describes as its most treasured shibboleth, the free movement of persons? Actually, the time might not be unpropitious from the EU’s own institutional viewpoint, given that this free movement principle has by now been so undermined and is currently riddled with so many issues if monitoring and enforcement (on which I intend to expand more fully in a later post/blog). History has shown time again that, in matters of international law and institutions, hard-headed expediency and pragmatism can overcome even the most cherished legal principles for the sake of maintaining a status quo deemed to be in the general interest. And current political developments – which indeed include those currently occurring on the other side of the Atlantic – might cause such a previously unthinkable outcome sooner than we think.

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