June 27, 2016

Lucas Bergkamp on Brexit's Lesson for the European Union

In this post, network member Lucas Bergkamp (Erasmus University Rotterdam (emeritus) and Hunton & Williams) offers some provocative thoughts on the implications of Brexit.  Rather than focusing on ways to "punish" Britain or to forestall similar outcomes in other Member States, he argues that Europe's decision-makers should heed the true lesson of Brexit: that the critics have been right all along in their attacks on the Union's democratic credentials, and radical reform is needed if European integration is to survive and flourish.

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Brexit's Lesson for the European Union

Those who are dissatisfied with the outcome of the UK referendum on EU membership have responded defensively and dismissively. Accusations have been made about lies and misrepresentations by the pro-Brexit campaign, while the representations made by the other camp have not generally been subject to serious scrutiny. Is there any evidence, for instance, that Brexit will result in war? Concerned about further defections, some EU leaders have promoted a counter-productive strategy of harsh punishment: the UK should be punished severely to prevent other Member States from even considering an exit. Implicit in their position is the unattractive proposition that the EU can be kept together only if it punishes defectors. Unfortunately, the retributive approach, which has long been abandoned in criminology, has merely reinforced the impression of an anti-democratic behemoth controlled by an unaccountable bureaucracy.

Structural change

Proposals have also been made for structural changes to the referendum process in Britain (or more generally). One such proposal involves raising the minimal decisive vote in future referenda from a simple majority to some qualified majority (e.g., two thirds) to preclude a narrow majority from making fundamental long-term changes to the system. The US has adopted a high threshold for amendments to its constitution, but there at least some current thinking seems to favor reducing the threshold. In any event, if a referendum is part of the process, it seems logical that the threshold for leaving the EU should be the same as the threshold for joining the EU, and it should be agreed in advance, not after the fact and in light of a controversial outcome. Other proposals involve a second referendum that would be decisive on the issue. The justification for a second vote would be that people should be given a chance to learn from their mistakes, to change their mind, and to make the right choice. Of course, the unproven assumption is that people were uninformed or misled, and made the wrong choice.

The democratic deficit

None of these proposals, however, go to the heart of the European problem. The EU has structural problems that need to be addressed. These problems have been around for decades, but fundamental change has thus far been blocked. For too long, the EU’s existence has been justified by its imaginary peace-keeping function. The misguided idea that the EU, rather than NATO, has safeguarded peace in Europe, was reinforced by the award of the Nobel Peace Prize in 2012. To resolve its "democratic deficit," the EU has allowed for direct elections of the European Parliament, but never gave it full legislative powers. As a further quick fix, the EU resorted to a system of "direct democracy" based on transparency and public participation in its legislative and regulatory processes. From the perspective of people with no Brussels connections, this fix only made things worse because it seemed to confirm the image of elitist activism and "crony capitalism."

Some commentators have argued that the EU’s democratic deficit is a “myth propagated by eurosceptic circles.” To defend this position, they point out that national parliaments, if they represent at least one third of all the votes allocated to the national parliaments, have the power to request reconsideration of proposed EU policies based on non-compliance with the principle of subsidiarity.  They also emphasize the European citizen initiative program, which allows citizens, if they number one million and are nationals of a significant number of Member States, to ask the Commission to propose a new policy. But can these marginal features be invoked as a meaningful concession to the principles of democracy?

Beyond democracy

Other authors have argued that the EU, unlike the nation state, should not be assessed against the benchmarks of democratic decision-making, because the EU is a supranational or international organization that derives its legitimacy and accountability from national governments’ participation. Even though this may formally be right, it is part of the problem. The EU seriously dilutes the accountability of any individual national government, and the principle of supremacy allows governments to pass legislation through the EU that they would not be able to pass through their national legislative processes. Through "horse-trading" behind closed doors, national governments might also be able to take advantage of the EU process to export an unattractive "sclerotic" national program to all of the EU. Before their own parliaments and citizenries, national governments may be able to avoid accountability for EU policies by simply pointing to “Brussels” as the source of the measure in question.

Of course, the EU’s structural deficiencies have much to do with Europe’s troubled history. The experience of two world wars and subsequent armed conflicts have made European intellectuals sharply aware of the costs of conflicts and the risks of democratic decision-making. Accordingly, substantive arguments against democratizing the EU often reflect a distrust of democracy itself. As the Brexit referendum illustrates, the sentiment is that less educated people are susceptible to misleading ‘populist’ politics, and that there are always unscrupulous populist politicians around to exploit their fears and concerns. The EU would therefore function as a necessary safeguard against the populist tendencies of national democracies. These sentiments, however, are not supported by empirical evidence, and, as for example the climate change debate demonstrates, non-populist or elitist politicians also employ tendentious propaganda.

In short, it is simply not true that in the conflict between populist and elitist politics it is only the latter that has a claim to veracity or honesty, nor that it alone will produce the right results.  As Nietzsche has warned, “he who fights with monsters should be careful lest he thereby become a monster.” Indeed, the elitist remedy against the actual or imaginary populist monster may be worse than the disease.

The persistence of the EU's deficiencies

Due to the resistance against the implementation of democracy at the EU, the democratic problems continue to be glaring. The Commission still holds an inexplicable monopoly over the initiation of the legislative process. National parliaments still have no power to approve or reject EU legislation, while the European Parliament is unable to represent their national constituencies in any meaningful way and is effectively limited to changing a few details in the proposals served up by the Commission. The real powers reside with executive governments, many of which do not feel they have any real influence on EU decision-making and tend to blame on ‘Brussels’ any EU legislation that their parliaments do not like.

At the same time, the EU has eroded democracy further by granting broad powers to unelected judges to push a program of European integration and to protect an absurdly inflated set of ‘human rights,’ including a right for “everyone” (sic!) “to “a free placement service.” On dogmatic and self-serving grounds, the Council has consistently rejected any significant reforms, and limited itself to, by and large, cosmetic changes to appease its critics. This incremental approach may no longer produce the desired effects.

Institutional reform

Thus, the direction of the necessary institutional reform is clear: remove the executives and bureaucracy from the EU’s political decision-making procedures and bring the power back to the people and their national representatives. To ensure continued relevance, the EU should therefore move toward a more democratic and flexible design. The EU should derive its legitimacy not from wielding extensive powers, but from offering sound and attractive proposals to its constituencies.

Under such a model, Member States would be bound by a European treaty, but each Member State would be free to decide whether it will implement a piece of EU legislation. This "menu approach" would allow a member state to adopt only the EU legislation that creates added value for it. It would be fully consistent with the subsidiarity principle, to which the EU now only pays lip service, and be responsive to the wishes of national democracies. The European court system would be opened to European citizens, rather than being accessible, in most cases, only to "privileged" applicants, and its power should be properly restrained in accordance with principles of separation of powers. To avoid improper judicial interference with legislative and executive powers, the EU’s fundamental rights would be trimmed down to those that are necessary to protect the individual rights granted by the Treaties.


If democracy, to borrow Churchill’s words, is “the worst form of government except all the others,” it will at times be messy. We should expect that, sometimes, democratic decisions may seem inefficient, awkward, or even against some perceived national interest. Of course, one may disagree with the outcome of the UK referendum, but to label the Brexit proponents as ‘populists’ and to dismiss the majority as uninformed, xenophobic, or old and egoistic, is vacuous and baseless, because it mistakes politicians’ propaganda for voters’ grounds for decisions. It also completely misses the point, since nobody argues seriously that these groups should not have an equal right to vote, that democratic decision-making should favor the informed, cosmopolitan, young, and altruistic, nor that politicians should only tell the truth, the whole truth, and nothing but the truth. In the information age, politicians, on all sides of the spectrum, know that they can only be effective if they cater to their constituencies and are "economical with the truth."

The opportunity provided by Brexit

Beyond the opportunities provided to the UK, the pro-Brexit voters did the EU a huge favor: they have given the EU Member States the incentive they need to implement far-reaching structural reforms. A "constitutional fitness" check of the EU system will expose its deficiencies. As discussed above, it is not hard to see what reforms are needed. If there is to be a process of creating an "ever closer Union among the peoples of Europe,” this process must be controlled by the citizens of the Member States. While the current treaties pay only lip-service to this idea, Brexit calls for a new birth of subsidiarity.

Rather than whine about the outcome of the UK referendum or advocate punishment of the defectors, the EU should capitalize on the momentum that Brexit generates. In the interest of Europe’s peoples, it should work with, not against, the UK government, recognizing that 48% of the population wanted to remain in the EU. The EU bureaucracy lacks the powers and incentives to do so, however. It is time that Europe’s national political leaders stand up if they want to avoid a further rise of the growing anti-establishment movement.

A new Europe of the people

The peoples of Europe are entitled to an EU that works for them. The times of ‘integration by stealth’ are over. The internationalist movement, which represents only a small but vocal minority, does not offer a satisfactory, sustainable solution, and, like the EU, shows strong antidemocratic tendencies.  Not surprisingly, the French-German reform proposals that have thus far been published shy away from serious reform and offer merely more of the same. This time, however, they are likely to fail.

To date, the EU may claim to have attempted to establish government for the people, but it never established government of the people or by the people. Compliments of the UK people, the times of government of the people, by the people, for the people have arrived in Europe.

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