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Last Friday, the Jean Monnet Center for International and Regional Economic Law & Justice at NYU School of Law hosted a lunch talk with Ed Balls, now a Senior Fellow at Harvard’s Kennedy School, but formerly Cabinet Minister and Shadow Chancellor for the British Labor Party and hence an insider of British politics. The capacity audience in the lounge of 22 Washington Square North witnessed a live performance by a political mastermind as Balls disentangled historic path dependencies, cultural differences, and political rationales to explain the ‘awkward relationship’ between the UK and the EU. Against the backdrop of the ongoing negotiations for a new settlement between the UK and the EU on the basis of which the British electorate will vote either to leave the EU (‘Brexit’) or to stay (‘Bremain’), Balls argued forcefully for the UK to stay in the EU to avoid losing both influence and prosperity. He has made the argument in more detail in an article for the Wall Street Journal. Based on current polling data, he predicted a close referendum with the ‘Bremain’ side keeping the upper hand.
The initial reactions by the two discussants Daniel Keleman and Peter Lindseth sparked an interesting debate.
Daniel stressed the EU’s unique feature of being a voluntary federation and the risky nature of referenda. Despite the stronger rationale for ‘Bremain’—who would rather be a passive taker than an active shaper of EU law?—he estimated the chances for this outcome (only) at 60-40. He called the proposed settlement package a ‘Kabuki theatre’ without substantively meaningful content, but instead ridiculous proposals of doubtful democratic credentials (the red card procedure for national parliaments), alongside commitments which are already an EU priority (competitiveness), unenforceable (economic governance), or which effectively provide an ex post remedy for a situation which could have been avoided in the first place (had the UK instituted limits for free movement of workers in the wake of EU enlargement towards Eastern Europe). Daniel predicted that a vote to leave would be the end of the UK—as the EU-friendly Scottish populace would demand a new referendum on its membership in the UK, while the EU would continue its trend towards multispeed Europe in a three tier system, consisting of the Eurozone, EU members without the single currency, and non-EU members with ties to the EU (to gain unrestricted access to its single market).
Peter disagreed on the red card procedure which he viewed as an important mechanism for information flows and very much in line with a wider trend of assertion of autonomy by European (national) parliaments seeking to increase parliamentary scrutiny over the law making process in Brussels. He identified a need for a pro-European Euroscepticism to propel a transnational movement for a different kind of European integration, which enjoys administrative legitimacy. Pressured by Ed Balls for concrete proposals to this effect, Peter argued inter alia for confronting what he called the ‘unqualified pro-Europeanism of the European Court of Justice’ by reforming the EU’s judicial architecture (e.g. by allowing for dissenting opinions, by creating a European Conflicts Tribunal as a more political arena for dispute resolution, and by revisiting the canon of interpretation which the CJEU employs).
The ensuing discussion with a very engaged audience was skillfully managed by Gráinne de Búrca and touched upon a whole range of issues which often seemed to gravitate around the questions of migration in light of the refugee crisis. Daniel Francis’ sharp question whether the decision to hold a referendum was wise and necessary under the given circumstances, led to a clear answer by Ed Balls: certainly unwise—but maybe politically necessary. When David Cameron walked out of the room at the European summit back in December 2011, he gained roaring applause from the British press but inadvertently nurtured the narrative that it was better for the UK to stay outside. Now he is seeking to convince the British people that the new settlement will be a game changer. Let me offer three thoughts on the current proposal by President of the European Council Donald Tusk:
1. The proposal foresees a re-interpretation of the EU’s leitmotiv of “ever closer union”. I would challenge the notion this was no big deal. First, one should not underestimate the importance of guiding principles such as “ever closer union” for the interpretation of EU law. Second, “ever closer union” has been part of the European project since the Treaty of Rome and at least some of the EU’s founding fathers associated it with the ultimate goal of political integration which is now challenged. In contrast to Tusk’s proposal, consider Andrew Duff’s carefully drafted suggestion which preserves the open-ended nature of the principle, while still taking Britain’s concerns about committing to a certain kind of European integration on board.
2. The red card procedure to allow national parliaments to prevent the adoption of legislative acts where they are considered to violate the principle of subsidiarity seems inconsequential as a practical matter. If there is indeed resistance by more than 55% of them (bicameral systems with one vote for each chamber, unicameral systems with two votes), it seems extremely unlikely that there would have been enough support by national governments in the first place to approve the proposal in the Council. Might it be that the British fail to see that other parliaments (the German being a case in point) are much more submissive to their respective governments and party leadership than Westminster and thus overestimate the opposition that can be generated this way?
3. Steve Peers’s analysis of the new settlement points to the European Court of Justice as the elephant in the room. If there is a conflict between the standing case law of the Court, grounded in EU Treaty law, and the promised adjustments to EU rules on free movement of workers as part of the new settlement, which side will prevail in Luxembourg? Judging by the experience of Opinion 2/13 in which the Court practically ignored even commitments made by Treaty law—Article 6(2) TEU and Article 52(3) GRC—to block accession of the EU to the ECHR, I would be skeptical of the Court’s fidelity to a deal of dubious legal nature. As Peter suggested, the Brexit negotiations could be a chance to revisit the relationship between the member states and the CJEU fundamentally—but European leaders do not seem inclined to do so.
As I am writing this post, they are trying to hammer out a deal in Brussels. If they succeed, the referendum could happen as early as June. I venture to predict that the Brexit campaign will prevail by galvanizing its supporters while defusing any fear of potentially catastrophic consequences by pointing to the lengthy Brexit negotiation process (Article 50 TEU)—at the end of which the British electorate might have changed its mind after realizing (too late?) that it is better to stay in the room where it happens.