The EU in Catch-22 Situation: Treaty Reform v Constitutional Compromises

On 6 April, the Dutch voters rejected a proposed trade and accession deal between the EU and Ukraine, in a national referendum. Ironically, the former Ukrainian President Yanukovich was ousted in a public protest two years ago because of not embracing this very deal. But there is more to that: the Freedom Party (PVV) of the Netherlands, which was a driving force behind the No move has stated that this outcome was a step towards the referendum on quitting the EU. This statement from one of the EU’s founding states coupled with the looming British referendum this summer is a clear signal that the EU is facing its toughest survival test ever—that is, political/constitutional. Being an inherently political project, the EU has struggled but shown resilience in economic and financial turmoil (exercising fluctuat nec mergitur, which also happens to be the motto of Paris), but may well sunk being tossed by political waves.


The daunting problems

The EU is struggling today on all fronts—politically, economically and financially, socially, and security-wise. This did not happen overnight; the problems kept accumulating for quite some time but were either ignored or brushed away as irrelevant. One the one hand, the EU faces the challenges of increasingly volatile world, as anyone else in the 21 century does. This is an irreversible, objective, process brought by globalization whereby fast changing environment poses unprecedented surprises to individuals, societies, states, and international organisations. On the other hand, there is a burden of misguided policies accumulated over the years (roughly since the end of Cold War). Increasingly, the EU has resembled all the characteristics of an empire in decline:

— fast and unfeasible territorial expansion at the expense of gradual progression;

— inequality in wealth distribution, as between the centre and the peripheries so within each country;

— mass migration from the peripheries to the centre combined with the tense intergroup and interfaith relations;

— poor overall economic performance, especially vis-à-vis aggressive external competition;

— inflexible decision making processes combined with diminished government effectiveness;

— sizeable and quite expensive central bureaucracy;

— the rise of radical political movements and disintegrative forces; and finally

— the escalating security threats (having declared bellum justum, or ‘just war’, fights it on its borders and elsewhere, while being systematically rampaged by savage attacks in its heartlands).

Since the end of the Cold war, the EU has increasingly resembled all the characteristics of an empire in decline.

These are quite grave symptoms, considering what has happened with all those initially successful imperial constructs in the course of history (from Romans, China and Mesoamericans, all the way long to British, Ottoman, and Austro-Hungarians as of the last century). Also, it is important to note that these problems are correlated (not necessarily cause-effect relationship tied) but vary independently, which means that (a) there hardly is a one-off (whatever fundamental) solution that can fix all the troubles, and (b) it is almost improbable to address them by ‘traditional’ EU decision-making approach. Now the question is, whether it is at all possible?

Contributing factors

One of the political science methods to look into the problem is path dependency model, which is built on a presumption that where you end up depends upon how you got there, as a result of a series of choices made in the early trials along the way. From this perspective alone, there have been various (and numerous) explanations offered. Considering the political nature of the crisis faced by the EU, I will point out to the governance related weaknesses, namely, the inability of EU institutions to make difficult decisions and undertake strong action upon them, in order to survive politically and economically in this volatile world. As a result of its institutional complexity and the intricate political dynamics involving 28 member states, policy-making in the EU is slow, increasingly ineffective and inflexible, and above all, leaning towards preservation of status quo rather than change oriented.

There are four factors which, depending on the policy in hand, combine to contribute to this situation:

* the top policy direction giving bodies (such as European Commission and the European Council) frequently hold uncoordinated stands which leaves the decisions in impasse;

* the Parliament’s rule-making function, even though upgraded after Lisbon Treaty, in effect is not up to the task;

* mushroomed European agencies act upon diverging interests and policy agendas; and

* the member states act upon different (and at times competing, if not conflicting) preferences in various policy choices.

If the former three factors can be grouped as technical contributors the latter factor is crucial, since the most significant decisions in the EU are reached not through supranational institutions but as an outcome of bargaining between the national governments. Moreover, in negotiating and building compromises they lock in their domestic preferences, so that the ‘agreements [become] reflective of the lowest common denominator of national priorities’ [1], which in terms of the quality of decisions means that not the best policy alternative but rather the least objectionable would be opted for, in the end. In this set-up, the different policy preferences of member states come as natural and can be explained by such variables as member states facing different problems; being exposed to the same problem but with varying degree of severity; or demonstrating the interests that are driven by domestic political dynamics and present-day agendas.

Key criteria of successful government: effectiveness, legitimacy, credibility

Being problematic in the best of times, this arrangement turned out to be a killing factor during the euro crisis, calling the very survival of the EU into question. Hard economic and social tests of the recent years (and in addition, the refugee crisis) have exposed the deep rooted weaknesses of the EU, which cannot be addressed by merely cosmetic institutional adjustments (if aiming to achieve long-term sustainable outcomes). As it stands today, the EU does not meet any of the three core criteria against which the performance of any democratic system is broadly judged [2]: it lacks legitimacy to take tough decisions on behalf of the EU entirety; it does not have effective controls (and institutional capacities) to ensure the implementation on the ground; and it lacks credibility with the EU citizens due to unpopular austerity policies and many other failures (mostly related to wealth redistribution and welfare). [3]

As it stands today, the EU does not meet the three core criteria against which the performance of any democratic system is broadly judged: legitimacy, effectiveness, credibility.

Therefore, it has become obvious (for quite some time already) that the Treaty reform is imperative if the European integration endeavour is to move forward. Resistance to reform of various actors being the problem by itself, there are two challenges facing the pro-reform minded political actors. First results from different perspectives, second is a constitutional puzzle in its own right.

With regards to different perspectives, it has been long observed that, while everyone speaks of the EU reform they mean quite different things (even between political actors within one country, let alone across the member states). Everyone seems to be eager to make EU thrive and the Europeans as the community to prosper, but they somewhat fail to understand, let alone support, each other’s perspective even though sometimes it is in their common interest (partially because of the different set of problems faced, as discussed above, but also due to diverging approaches to handling their domestic problems—take, for example the rise of illiberal democracy in the East European states). This miscommunication (dubbed ‘lost in translation’ and meaning much more than the language barrier) between the EU member states (plus the Brussels based supranational institutions) reminds me of a verse from Rumi’s Mathnavi-i-Manavi, where the characters want and mean the same thing (grapes, in this case), but fail do understand each other and end up in disagreement and mess:

A man gave four companions one dirham/ The first said I will get angur with it/ The second, who was Arab, answered, No!/ I want inab, and not angur, you rogue!/ The third, a Turk, in Turkish chimed: It’s mine!/ I do not want your inab, but uzum/ A Greek, the fourth, called out:/ Put a stop to all this nonsense, It’s stafil I want./ Ignorant of the secret of those names/ through discord they were led to wrangling/ Long on ignorance, of understanding shorn,/ each punched, in knuckleheadedness, the other.’

Lack of legitimacy which derives from the ‘constitutional conundrum’ is at the heart of the EU troubles: the problem is that, despite being formalised in the Lisbon Treaty, the constitutional compromises (such as compromises between the supranational and intergovernmental interests) are not supported by ‘a constitutional framework from which to derive procedures for solving disputes and building new interstate compromises.’ [4] In this set-up, even if we suppose that in the end the member states come to the customary consensus at lowest common denominator, they still face a constitutional impasse which would demand much more effort than merely understanding each other’s preferences. What happens is that the EU finds itself in a paradoxical (or absurd) catch-22 situation: in order to get out of the crisis they need to reform the Treaty, but to do so it is necessary to follow procedures which, in turn, are not envisioned by the provisions of the present Treaty.

The EU’s catch-22 situation: in order to get out of crisis it needs to reform the Treaty, but to do so it has to follow procedures which, in turn, are not envisioned by the provisions of the Treaty.

The strategy for successful EU evolvers

It is broadly accepted that the future is unknown; it is impossible to predict the consequences of our decisions accurately, let alone offer their metrics. What is possible however is to look into reality – the EU is falling apart under the pressure of daunting problems and needs to change its mentality in order to survive, remain relevant, and evolve further ahead. Despite frequently referred to as ‘European integration project’, the EU is not a project in technical terms (‘project’ by definition being a set of activities to achieve a predefined goal in a limited time and with specified resources). Instead, the EU was designed as ‘an evolving institutional arrangement without fixed end-point’, where integration should be treated as means to an end and not the final destination. [5] This suggests the adoption of a strategy built on continuous adjustment and refinement.

The situation is complicated and threatening, but not hopeless. The much needed Treaty reform is impossible today (and perhaps in the nearest time period) due to political reasons briefly outlined above. But the attempts shall not stop. I am convinced that the only way is through deliberation, research, experimentation, learning and adapting – that the EU can transition through the current crisis into its next development stage (and perhaps, even different institutional shape). Considering the difficulty and at times irrelevance of grand projects in this fast evolving and unpredictable world (they demand vast data which is not always available, and time consuming computation, and time and resources to process, assess, and prioritise, and above all – by the time they are submitted to decision makers, such policy projects are already outdated, as the conditions on the ground have changed in the meantime), it makes much more sense concentrating at tactical level.

The attempts at finding solutions for the EU’s problems must continue – by scholars, development practitioners, government technocrats, and politicians of all ranks. I would distinguish two dimensions of this endeavour. First is practical: its modus operandi is sense-making through the trial and error approach, numerous small bids simultaneously placed across a variety of policy domains, to address primarily sectoral and sub-sectoral problems thorough timely adjustments. They will add the continuous waves of ‘random, low-intensity shocks’ necessary to keep the system healthy.[5] These efforts should be a driving force behind the EU reforming, while the other dimension – dealing with conceptual issues and strategising – would comprise learning, reflecting, and elaborating on the evidence produced by the former dimension and making larger-scale recommendations grouped along various clusters, such as by the EU policy domains and pillars, over time.

The importance of the EU is not limited to the European nations and their strategic allies only. It is a historic test of an approach that can offer a practice-tested answer to centuries-long questions. It can offer a model to be followed in the future elsewhere across the globe, with the necessary adjustments to local circumstances, political tradition and culture. (Even today, after a short period of existence, in historical terms, it can offer enough material for the students of political philosophy to entertain, on topics like EU as Empire, EU as Utopia, EU as Institution of World Order, or EU as Globalisation Era Political System).

The strategy is to keep implementing multiple small-scale innovative initiatives, learning and adapting, in order to keep the fundamental policy alternatives alive for the time when the ‘politically impossible becomes the politically inevitable’, from the evolutionary perspective.

To conclude, I believe that what the pro-reform EU champions have to do is, to paraphrase Milton Friedman, to keep on with the research and discourse and diplomatic talks, while simultaneously designing and  implementing multiple small-scale innovative initiatives in various policy domains, and keep learning and adapting to the changed environment accordingly—all in all, in order to keep the fundamental policy alternatives alive for the time when the politically impossible will become the politically inevitable, from the evolutionary perspective.


[1] James Hampshire, ‘European migration governance since the Lisbon Treaty’, Journal of Etnic and Migration Studies, 42:4 (2016), pp.537-553 at p.549

[2] The three criteria are known as the [democratic] government’s effectiveness, legitimacy, and credibility (owing to Samuel Huntington [1991] and Philip Keefer [2007]). In his recent book Francis Fukuyama [2015], following this tradition in political science, calls the key elements to successful government a strong state, the rule of law and institutions of democratic accountability.

[3] See, for example: Pieter de Wilde and Michael Zurn, ‘Can the Politicisation of European Integration Be Reversed?’, Journal of Common Market Studies, 50:1 (2012), pp. 137-153 at p.138

[4] Sergio Fabbini, ‘The Constitutional Conundrum of the European Union’, Journal of European Public Policy, 23:1 (2016), pp.84-100 at p.84

[5] Andrew Glencross, ‘Why a British referendum on EU membership will not solve the Europe question’, International Affairs, 91/2 (2015), pp. 303-317 at 317

[6] Nassim N. Taleb, Antifragile: How to Live in the World We Don’t Understand (London: Allen Lane, 2012), p.106

[7] As quoted in the Economist, 28 January 2010: ‘Milton Friedman, who, when monetarism was being mocked in the 1970s, replied “our basic function [is] to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes the politically inevitable.”’