The United States of America Questions the Credibility of the European Union

Posted by Andrew Duff on 25/02/15

Vladimir Putin’s manoeuvres cast a new light on the state of EU-US relations. If you are American you do not have to be Senator John McCain, who wants to arm the Ukrainians, to question the validity of Europe’s fond belief that reliance on soft power fits the bill for the 21st century. Russia, and for that matter Turkey no longer have truck with the European idea (if they ever did) that the rule of democratic law is more important than national sovereignty. The EU’s efforts to apply pressure on Moscow through a mix of diplomacy and sanctions are being watched quizzically in Washington. American scrutiny is informed by a slightly different reading of history and indeed geography.

On a recent visit to DC I was struck by how the Ukraine is seen as an embattled classic nation state on the front line of Western interests. Back in Brussels, it is more normal to see Ukraine as ambivalent border lands – what the Cambridge historian Christopher Clark calls ‘a post-Imperial space’ – for ever subject to the competition of several powers, some more benign than others. After 1945, the future of Ukraine was crafted entirely by the Soviet Union: as Churchill and Roosevelt conceded to Stalin at the Yalta Conference, all territory to the east of the Curzon Line was ‘theirs’ not ‘ours’. Only since the fall of the Soviet Union in 1990 has an independent Ukraine struggled to assert itself, against the odds, as a modern state governed from Kiev. Both the EU and US have offered help in building up Ukrainian economy and society, but the EU has never seen Ukraine as a defining strategic interest and has never sincerely extended to Kiev – unlike the Baltic or Balkan states – the offer of prospective membership.

NATO surpassed

Traditionally, the US has been more comfortable with the power politics of NATO than with the ‘technocratic charisma’ of the European Union. It is telling that the focus of today’s Western reaction to Putin’s adventurism is the EU and not NATO where the presence of Turkey is an embarrassment. That Barack Obama’s administration seems content to conduct transatlantic discussions about the Ukrainian crisis with the EU signals growing American trust in ‘institutional Brussels’. But then the President is a constitutional lawyer.

Recent changes at the top of the EU have helped. The tougher language of President of the European Council Donald Tusk on Russia is preferred to that of his emollient predecessor Herman Van Rompuy. High Representative Federica Mogherini is thought ‘competent and fluent’. There is much interest in Washington about the whys and wherefores of the Spitzenkandidat experiment that saw Jean-Claude Juncker elected in 2014 as a more overtly political President of the European Commission than José Manuel Barroso. And the emergence of Germany as the lead player in the EU’s efforts to build a common European foreign and security policy is wholly welcomed.

There will be difficulties ahead if the ceasefire drafted at Minsk crumbles and the EU has no contingency plan. EU-US relations could certainly be closer than they are. Neither Tusk nor Juncker has yet been to Washington, and Obama is thought to be reluctant to hold another summit meeting this summer with the Europeans: he found the laboured duet of Van Rompuy and Barroso at these occasions painful to endure, and the prospect that the Latvians could now climb in on the act by virtue of their term as president of the Council of Ministers risks putting the kybosh on another EU-US summit.

Who’s our Hamilton?

I found nobody in America who believed that the euro can be saved without deeper fiscal integration. Having waxed at a Yale conference about how Jean Monnet was Europe’s James Madison, I was asked to nominate Europe’s Alexander Hamilton (who created the US Federal Treasury). Hmm.

To Americans steeped in presidential politics, it seems odd, not to say absurd, that the EU’s executive is so weak and diffuse. The US experience suggests that without the establishment of strong federal government European solidarity at home and European cohesion abroad will continue to be elusive. Europe’s unification continues to be seen as very much in the American interest, as Churchill, Schuman and Monnet originally testified.

The retirement of the British from the international scene is also a matter of much comment in Washington. The decisive moment as far as the Americans are concerned was the August 2013 decision of the House of Commons not to send British troops to Syria. The coalition government has done nothing since to refurbish the special Anglo-American relationship, particularly after the removal as foreign secretary of William Hague. The fact that Scotland was almost allowed to leave the United Kingdom, and may yet do so, is regarded by most Americans (many of whom take pride in their tartan) as incredible.

Yet the prospect of Brexit has not yet sunk in. If Cameron is still prime minister after the British election on 7 May and then calls a referendum on leaving the EU watch out for truly scandalised Americans.


Andrew Duff’s new book is Pandora, Penelope, Polity: How to Change the European Union

The European Union is in Deep Trouble with its Top Court

Posted by Andrew Duff on 07/01/15

Something rather shocking has happened. The European Court of Justice (ECJ) has just confounded its friends as well as its foes by blocking the EU’s efforts to sign up to the European Convention on Human Rights (ECHR). In Opinion 2/13 delivered on 18 December, the Court ruled that the draft accession agreement between the European Union and the Council of Europe breaches EU law. In so doing, the judges defied the combined will of the European Commission and the European Parliament. They also demurred from the advice of their Advocate General Kokott who had recommended, with qualification, that the deal be accepted.

Although we may assume that several EU member states were and still are ambivalent about the project, the European Council (24 of whose member states intervened separately in the case) was bound to follow the treaty which says that the Union ‘shall’ accede to the ECHR. Difficult negotiations on the draft agreement were concluded between the EU and the Council of Europe’s 20 non-EU signatories in April 2013, and the Commission then asked the ECJ for its advice on the compatibility of the agreement with the EU treaties (under Article 218(11) TFEU).

The Opinion is long and complicated, as it might well be considering the long history and high political importance attached to the matter in hand. It is worth recalling – especially because the Opinion does not do so – that the goal of EU accession to the ECHR is to strengthen human rights protection in Europe. That the EU requires the adherence of all its member states to a Convention to which itself is not a party is an anomaly. It has been argued for decades that the EU needs to conform explicitly to the original human rights document of post-War Europe in the interests of legal certainty, uniformity and effectiveness. The EU borrowed and copied the ECHR when it drafted the Charter of Fundamental Rights in 1999-2000, and signing up to the ECHR was made a quid pro quo (not least at the insistence of the prickly British) for allowing the Charter to be made binding in the Treaty of Lisbon. Indeed, the ECJ demanded a change to the treaty in a 1996 Opinion precisely in order to make accession compatible with EU law. This was achieved at Lisbon (Article 6 TEU & Protocol No 8).

Does it matter?

The effect of the EU’s adhesion would be to accept the European Court of Human Rights (ECtHR) as the external supervisor of the ECJ in the matter of fundamental rights when and in so far as the exercise of EU competences were concerned. The EU’s own mandatory Charter is already cited in much ECJ litigation, and although the EU is expressly permitted in interpreting the Charter to go further in more extensive rights protection, the jurisprudence of the ECJ and the political and legislative actions of the EU institutions must not contradict the earlier Convention. It is also presumed that after accession the right of redress for a breach of rights will be quicker and cheaper at the ECJ in Luxembourg than at the ECtHR in Strasbourg. Optimistically, one could foresee ECJ jurisprudence establishing the best rights regime in the world.

The accession process was always going to be fairly complex. The EU, needless to say, is not a state: but its status in international law, the fact that its own supranational law has primacy and direct effect, the given nature of EU citizenship and its institutional arrangements (not to mention a single currency), give the EU a perfectly adequate standing to become a party to the Strasbourg Convention. If not a state, the Union is certainly, and increasingly, state-like. While the EU will not join the Council of Europe, the Commission will sit in the Committee of Ministers, which is the control body of the Convention system, an EU judge will join the Strasbourg Court, and MEPs will join the Parliamentary Assembly (PACE) for the election of judges.

So what’s the problem?

The Court of Justice, which in any case tends to exaggerate the uniqueness of the EU’s constitutional order (as if no other federal system has ever existed), takes a lofty view of its own importance. According to the Opinion, the draft accession agreement fails to preserve the specific characteristics of EU law; it does not adequately ensure that accession to the ECHR will not affect the share-out of competences between the member states and the EU or the powers of the EU institutions. The ECJ fears that the ECtHR could interlope into domestic EU matters. In particular, the Court’s powers to give preliminary rulings on the application of EU law (Article 267 TFEU), and the obligation for states to deal with their disputes exclusively at the ECJ (Article 344 TFEU) are deemed to be jeopardized by the draft agreement.

The Opinion complains that the mechanisms to ensure proper coordination between the Luxembourg and Strasbourg courts are not spelled out, at least where the ECJ would be asked by the ECtHR for its prior involvement in a case to assess its substantive and procedural relevance to either the primary or secondary law of the EU. The ECJ dislikes the freedom given in the draft agreement to the ECtHR to examine the plausibility of an EU state’s eligibility to become a co-respondent to a case, believing that both the EU and an EU state should have an automatic right to intervene in relevant Strasbourg litigation. And the Court of Justice worries that the habitual and mutual presumption that each EU member state respects fundamental rights to the letter, especially in the field of justice and home affairs, will be undermined by the arrival on the scene of a bossy external supervisor.

Lastly, there is the thorny issue of the common foreign and security policy (CFSP) where the ECJ’s own powers of judicial review are greatly restricted under the terms of the EU treaty (Articles 24(1) TEU & 275 TFEU). After accession to the ECHR, the Strasbourg court would have much more power than its counterpart in Luxembourg to interpose on (the fairly numerous) breaches of human rights in the area of CFSP. The Opinion finds this state of affairs distasteful.

What’s to be done?

The practical effect of the shock judgment of the Court is to kill off the draft agreement and to postpone indefinitely the EU’s accession to the ECHR. The Commission would be wise, however, not to let the matter drop. Improvements and clarifications to the issue of coordination between the two courts can be made to the draft agreement if the other members of the Council of Europe agree. They should be attempted. Despite the bad state of diplomatic relations between Russia, Turkey and the EU, the accession agreement would give those states the right to intervene at the ECJ; and their voting rights are to be well protected.

Furthermore, the EU must now complete the negotiation of its own internal rules that will govern how the institutions deal with ECHR affairs in the future. These rules, which will have to be agreed with the European Parliament, ought to satisfy the sceptical lawyers that the due process of legitimate governance under the treaties will be respected. The rules of procedure of the Council and Parliament will need to be modified, as will the Statute of the Court.

And, lastly, the EU treaties should be changed. Adjustments to Protocol No 8 aside, two other amendments would immediately help the installation of a decent fundamental rights regime at the EU level. First, the woeful restrictions on the jurisdiction of the Court of Justice in the field of CFSP should be lifted. Second, we need a new clause to oblige the member states to respect the constitutional identity of the European Union, not least in terms of its values and principles. Let us call this the Viktor Orban clause. That would certainly make our Union more state-like.


Andrew Duff took part in the drafting of the Charter of Fundamental Rights and the Treaty of Lisbon. Pandora, Penelope, Polity: How to Change the European Union is published on 19 January.

Turkey’s EU Accession Negotiations should now be Suspended

Posted by Andrew Duff on 15/12/14
Tags: , , , , , , ,  

Tuesday’s (16 December) meeting of the General Affairs Council is going to have to take a fresh look at the EU’s deteriorating relationship with Turkey. It is at any case this time of year that the Council re-assesses the enlargement policy of the Union. The Council’s deliberations bear upon what are dubbed, somewhat euphemistically, ‘Progress Reports’ from the Commission which is responsible for conducting accession negotiations on behalf of the member states. The current assessment will be the first since Jean-Claude Juncker, the new Commission President, declared that there will be no new state joining the EU during his five year mandate. In truth, there are very few candidates. Norway is too rich too join and Iceland has taken fright. The seven countries of the Western Balkans have a long way – some a very long way to travel in terms of achieving essential qualities of statehood let alone the necessary capacity to pool their sovereignty and integrate their economies within the EU. (We need not go here to Moldova or the Ukraine.)

Only Turkey remains. After having been granted accession country status in 2005, only one of the 33 chapters (R&D) has both been opened and closed. Progress on the other chapters has been imperceptible despite the dogged optimism of Stefan Fule, enlargement Commissioner under President Barroso. At a technical level the continuing exercise is worthwhile in aligning officialdom and in helping companies do business in each other’s markets. Some ‘pre-accession’ EU money has been usefully deployed in infrastructure projects and in helping civil society in Turkey to advance. The largest delegation of the External Accession Service sits in Ankara, waiting the day when both parties in the relationship will decide that they really want to live together.

This Turkey will not join this European Union

But that day is not foreseeable. Even at a technical level, Turkey does not apply all the rules of its customs union with the EU (notably on public procurement), and there is next to no chance that Turkey will be included in the TTIP negotiations. Liberalisation of visas and implementation of the readmission agreement for irregular migrants remain agonisingly slow. Obdurate Turkey refuses to recognise the Republic of Cyprus. Many of the accession chapters are blocked because one or other EU state opposes Turkish membership on grounds which are highly political and sometimes prejudicial. Only one country, the United Kingdom, still makes friendly noises about Turkey’s eventual membership – but that very same country is itself thinking of leaving the EU. In any case, British support for Turkey provokes real suspicion in other capitals that its true motive in widening the Union to include Turkey is to weaken European integration.

The real problem, however, rests with Turkey itself. In the early years, the Kemalists who ran Turkey wanted to join the EU as an insurance policy against the rise of Islamic fundamentalism and as an economic adjunct of NATO to which military alliance the Turks are still at least formally committed, as well as a way of wreaking revenge on Greece for its historic insults. When the Islamists took over in 2002, the EU was seen as an important guarantor of the human rights whose abuse at the hands of the Kemalists had caused many Islamic brethren, including Recep Tayyip Erdogan, to be imprisoned. The prospect of EU accession also played well with the rapidly expanding industrial middle class of Anatolia, who supported the AKP, the new ruling party, in very large numbers.

Gradually AKP’s commitment to Europe has declined. After years of tinkering with the Turkish constitution there have been minor improvements but not the radical overhaul it needs to meet EU norms. Torture is proscribed, but the administration of justice remains slow, poor and unfair.

A number of AKP high-ups, notably Ahmet Davutoglu, now prime minister, has never been willing to sacrifice Turkish sovereignty in order to join the Western liberal community which if not Christian is godless. Davutoglu’s goal is for Turkey to lead a neo-Ottoman revival across the Middle East and North Africa. AKP founder and former President Abdullah Gul performs well on the Chatham House circuit that still treats Turkey as if it were a natural ally of the West. But the old school of smooth talking Turkish diplomats is now dying out, and Gul himself a staunch AKP militant – finds himself more at home in Arabia than Europe.

Erdogan flays his enemies

Erdogan himself knows very little about the EU. On his rare visits to Brussels he tends to shout loudly and act prickly. At home, he flays first one supposed enemy then another. The armed forces, the bankers, the students, gay rights activists, the Americans – not forgetting the Europeans have all been traduced. Then he turned ferociously against his former ally Fethullah Gulen when the Imam had the temerity to criticise the AKP government, quite justifiably, for large-scale corruption.

Since Sunday many journalists who align themselves with Hizmet, the Gulenist movement, are under arrest for a range of exotic charges. Gulen himself is an enigmatic character, with a long history of religious activism. Now in self-imposed exile, implausibly in Pennsylvania, he oversees a vast network of high-minded Islamic schools and charities in Turkey and elsewhere. Whatever Gulen is, he and his followers do not seem to me to have the makings of terrorists or plotters of a coup d’état, as Erdogan claims.

In power now for too long, Erdogan is corrupted. Not only has he lost the once-beguiling charm of the moderniser, but he has adopted the mantle of the ultra-nationalists. He speaks of Turkish North Cyprus in the same tones as Putin speaks of Crimea, sacred duty and all. His earlier efforts to recognise the Kurdish problem, including his careful talks with the rebellious Kurds, have soured with his refusal to help the Kurds against the Sunni fundamentalists in Iraq and Syria. Indeed, some in Western intelligence suspect Erdogan gives tacit support for ISIS. It is clear at the very least that EU/NATO is not successful in aligning Turkish foreign and security policy with that of the West.

Erdogan knows how to be elected democratically but not to govern so. The opposition parties are insulted. Religious and cultural minorities, notably the Alevis, are discriminated against. The liberal media, NGOs and universities are assailed. The reform of mainstream state education is neglected in favour of Islamic hatip schools. Secular liberal Turkey is challenged by the rise of conservative Islamic family policy. In short, Turkey is becoming less and less European.

Although some are still optimistic – such as the eminent authors of a recent Carnegie report – I am not. In fact, as a long-standing Turcophile I want much better for both the EU and Turkey than this desperate fictive enlargement. The membership ‘negotiations’ are at best useless and at worst fraudulent: they should now be suspended.

The new High Rep Federica Mogherini and Fule’s successor Johannes Hahn made a bold statement on Sunday (14 December) against the arrest of the journalists from Zaman and other Gulenist media. They said that ‘this operation goes against the European values and standards Turkey aspires to be part of’. It would be wrong in these circumstances for the Council to ignore the fact that Turkey no longer fulfils the Copenhagen membership criteria within the margin of error.

The new Junckerite broom should be deployed to sweep away the charade of an ‘accession process’ with Turkey. Instead, a deep and honest reflection is needed about what kind of durable, strategic partnership between Ankara and Brussels is in our best long-term mutual interest. To deny the facts of the matter will demonstrate Europe’s weakness and leave us to be harmed for many more years by the doleful affairs to the East of Czar Vladimir the Bad and Sultan Tayyip the Fierce.

The First Forty Days and Forty Nights of Jean-Claude Juncker

While a lot of people, many of them prime ministers, grumble about the need to ‘reform’ the European Union, no European leader has yet been moved to elaborate on why, what and how to reform. Even David Cameron gropes to give substance to his grumbling: most of what he needs to stem the migrant tide could be achieved by changes to British law, and the rest – the abolition of ‘ever closer union’, for example – is a pipedream. Viktor Orban, alarmingly, yearns after an ‘illiberal Europe’. François Hollande admits to wanting a ‘differentiated Europe’ based on ‘new European architecture’. Mark Rutte wants to do things ‘at European level only when necessary, at national level whenever possible’. Matteo Renzi, meanwhile, needs a reformed EU to be able to govern Italy in a way which seems to defy the capability of the Italian state and its own political class.

Angela Merkel, meanwhile, keeps her own counsel. Not given to sounding off about ‘reform’, she told the CDU faithful that she prefers ‘solide Haushaltsführung mit Strukturreformen und Wachstumsmöglichkeiten’ (sound housekeeping, structural reforms and economic growth) and dreams of the digital single market – an altogether more mundane set of objectives.

However, taken together these contradictory pronouncements leave the new leadership of the EU institutions with a conundrum. Donald Tusk, President of the European Council, told the FT over lunch that he is not a federalist visionary (but I think we knew that). The early signs are that he will be more active on foreign affairs than Herman Van Rompuy, leaving more to Jean-Claude Juncker and the Commission the job of pushing ahead with EU reform.

40 Days and 40 Nights

Juncker’s first forty days of his five year mandate have been anything but uneventful. He has become embroiled in a row about tax evasion in Luxembourg, survived a motion of no confidence, over-turned EU trade policy, sacked the Commission’s think-tank, launched a controversial package to galvanise the economy and enjoyed not one but two budget crises.

The next challenge is to set out a work programme for the institutions which will command the respect of the two chambers of the EU legislature, themselves mostly at loggerheads. The man he has put in charge of this law-making exercise is his first vice-president and doorkeeper Frans Timmermans who, as Rutte’s foreign minister, used to champion decidedly eurosceptic views.

Timmermans wants the EU to do less than it has the habit of doing. Because the member states have no money, he argues, it is wrong for the EU to go on a spending spree. He is the advocate of the novel (for the EU) ‘principle of discontinuity’ in which the legislative work of the former Commission could be happily jettisoned by the new college. He is (or was) rather the champion of national parliaments against the European Parliament. My old friend Frans has directed his fellow Commissioners not to come up with any proposal unless it can be shown to contribute towards economic growth.

Legislative austerity

The legislative package that is to be unveiled in Strasbourg next week is likely to be austere in a Frans kind of way. 400 ex-Barroso measures are said to be for the chop. MEPs won’t like it. Neither will the social partners and NGOs. The dissenters will have a point. Although EU regulation is unpopular in the generic, ditching EU rules risks bringing back 28 versions of national rules. De-regulation creates legal uncertainty, even for business. EU law making has been on a long haul to set high standards of health and environment policy and to raise the quality of working life: it would be revolutionary and deeply unpopular to change course now. Unwise politically, such an approach would only bring comfort to those who never voted for Juncker in the first place (and surely never will). And when it comes to the big strategic questions, the Juncker Commission needs the full backing of the mainstream groups in the Parliament, most of whom are activist legislators across the wide spectrum of EU competence.

The logic of the First Forty Days is sound enough: without an end to economic stagnation, the eurozone will not be safe; without a safe euro, the Commission’s credibility will not be restored in Berlin; without political credibility it will be impossible for the Commission to take a lead on the large political issues concerning the future of Europe. These include the reform of the EU’s dysfunctional financial system, the logical progression from banking union to fiscal and political union, the creation of an ‘energy union’, the rectification of some less good features of the Lisbon treaty, boosting the Union’s democratic legitimacy and, oh yes, tackling the British problem. That is a reform agenda worthy of the name.

In the days ahead, Jean-Claude Juncker and his colleagues – now sworn in before the Court of Justice – need inestimable powers of leadership and a lot more good luck to avoid real trouble.


Andrew Duff’s new book, Pandora, Penelope, Polity: How to Change the European Union, will be published by John Harper in January.

Coming Soon: Another Cameron Speech

The Prime Minister is to make another much anticipated Big Speech about Europe. This time, the theme is immigration – or, rather, how to stem the alleged tide of EU citizens exercising their lawful right in accordance with Article 21 TFEU to move to and reside freely within the United Kingdom. David Cameron has already told his party conference that he promises to go the Brussels to ‘sort it’, and that unless immigration is curbed, Brexit looms. Other party leaders and eurosceptic think-tanks have already made their bids on the matter, most recently my own party leader Nick Clegg in the Financial Times.

Making a reality of EU citizenship

Few British commentators are versed in EU law. It would be better if they were. Article 21, for example, says nothing about ‘workers’ but refers to ‘every citizen of the Union’ having the ‘right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by measures adopted to give them effect’. No secondary law is therefore required to permit an EU citizen to move to live in Britain. Of the Treaty-based conditions relevant to free movement, the most important is to be found in Article 18 TFEU which says that: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’. Article 20 spells it out further: ‘Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia, the right to move and reside freely’ across the EU. Other articles of EU primary law (such as Article 3(2) TEU and Article 31 of the Charter of Fundamental Rights) confirm and reinforce the centrality of the principle of free movement and its direct effect. In fact, freedom of movement is the most important element of the proud concept of EU citizenship. If one were looking for one of the EU’s ‘red lines’, look no further.

Maintaining the single market

Then there is the internal market, which is defined in Article 26 TFEU as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. So there is an economic reason why people should be enabled to be as mobile as the goods they produce, the services they provide and the money they make. For many years it was a bane of economists that European labour was too immobile, and that the single market would never become a reality unless and until it was exploited by people on the move. Since the fall of the Berlin Wall, however, migration has been churning across Europe. Although immigrant labour is always disliked by the poorer, less-educated indigenous working class, the overall effect of immigration in terms of GDP is widely acknowledged to be beneficial. Business and the welfare state in Germany and the UK, in particular, have relied on immigrant labour for many decades, and this trend will not be reversed as their own communities age. Migration across the EU also serves as an automatic stabiliser, as a new study by Bruegel has explained: the valves of labour flow are just as reversible as the inter-connector gas pipelines that cross the continent. Many young Poles and Irish, for example, return home (plus savings and education) once the balance of economic advantage shifts.

Helpfully, the EU treaties lay down provisions so that ‘freedom of movement of workers shall be secured within the Union’ (Article 45 TFEU). Discrimination on the grounds of nationality over pay, recruitment, ‘and other conditions of work and employment’ is abolished. Recruitment is to be facilitated and job exchange is to be actively encouraged, especially for the young. Migrant workers who are sacked or retire have the right to stay. Administrative obstacles and qualifying periods which form ‘an obstacle to the liberalisation of the movement of workers’ are prohibited (Article 46). The same clause provides for EU laws to be enacted to regulate all these matters, including the management of supply and demand in the labour market ‘in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries’. EU legislation is required to ensure the provision of social security for ‘employed and self-employed migrant workers and their dependants’ (Article 48).

Social welfare

The variety and complexity of contributory and non-contributory social welfare systems across Europe, both in-work and out-or-work, make the ensuing EU legislation mightily complicated. As Steve Peers reminds us, there is much litigation in the European Court of Justice. But the basic legal situation is clear: EU law on the equal treatment of migrant workers has direct effect. Member states retain discretion as to their own social security systems, but each and every EU citizen must be treated in an equal way under the provisions of national employment or welfare law. The definition of ‘worker’ embraces those seeking work and those who lose their jobs, students, service providers and the self-employed, as well as their dependents. EU citizen migrant workers must be catered for without discrimination under the appropriate laws of the host state. It follows that any tightening of social welfare qualifications applied by a host state to EU migrants must also apply to its own nationals. As the recent case in Leipzig confirmed (Dano), benefit tourists do not profit under EU law. But self-sufficient persons can live wherever they choose within the EU – as millions of Britons have decided to do in sunnier climes, without let or hindrance.

When making his speech, Cameron will surely advise his audience that, while changing EU secondary legislation on migrant workers is possible, it would still need to be consonant with EU primary law in respect both of EU citizenship and the internal market. He might usefully add that all EU legislation needs to obtain a qualified majority in the two chambers of the EU legislature, Council and Parliament, so it really has to be crafted (by the European Commission) in the general interest of all states and citizens. In the absence of a destabilisation of the British welfare state, chronic industrial collapse or a threat to public security, Cameron and his colleagues will find it hard to substantiate the anti-immigration case they have so glibly launched. Bending EU law to suit the narrow or partisan interests of one state will not wash.

Changing the Treaties is a good idea for other reasons, but not this one. Stopping immigration will damage the economy. Reducing the rights of migrant workers is illiberal. Blunting the force of EU citizenship is uncivilised.


How to Save Cameron from Himself

There are some who are tempted to let David Cameron enjoy the consequences of his latest tantrum at the European Council. But for the sake of the long-term relationship of Britain and Europe it is probably worth rescuing him. Here are the elements of the deal.

The European Commission apologises for the clumsy way in which news of the latest technical budgetary adjustments was handled last week: its excuse is the handover from Barroso II to Juncker I. The Commission also agrees to write into its rules of procedure a mechanism for raising to the political level of the college the handling of future budgetary adjustments that are unexpected or substantial.

The UK’s Office of National Statistics comes up with some marginally adjusted numbers. The Ecofin meeting on Friday 31st verifies the Commission’s figures and tweaks them if appropriate for any member state (on a proposal of the Commission).

The British government asks to pay the agreed total sum in three tranches before July. The interest charges in case of non-payment – 2% in December rising by 0.5% every month – are deferred. This is accepted.

The Sixth Draft Amending Budget including all the adjustments, the reduction in overall expenditure and the rise of the UK rebate, is then passed before 15 November by the Council and Parliament.

The European Council in December agrees a statement committing the member states, at the next revision of the financial system, to reduce the proportion of own resources paid by direct GNI contributions from national treasuries. The Monti high-level task force on the mid-term review of the MFF is directed to reach a commensurately high level of ambition.

It is worth recalling that if the 6th DAB is not agreed the UK will have to pay €3.6bn and not €2.1bn. Even the House of Commons should be able to understand that.

Suck it and See: Scotland and after

Posted by Andrew Duff on 22/09/14
Tags: , , ,  

Winning the referendum on Scottish independence has thrown the British Establishment into a mighty tither. Only the Queen, whose mother was a Scot, emerges with dignity intact.

Not that things would have been very much calmer if the answer had been Yes rather than No. The fact is that without a written constitution to regulate referenda – their frequency, their threshold, and their mandate – the still United Kingdom (sUK) has no systematic method other than party politics to deal with constitutional change.

Reforms with profound consequences for the vitality of democracy and the efficacy of government to produce public goods are being made on the hoof, in a haphazard and even irresponsible way. There is no precedent for a Convention, at least in England. A simple majority vote in the House of Commons, with no threshold, is deemed sufficient to tamper with the constitution.

So it is to this partisan muddle that the country must now look for constitutional reform. As none of Britain’s seven political parties are in favour of doing nothing with the constitution, we must conclude that the status quo is not an option.

One need not be optimistic. Even Tony Blair’s reformist government with a large Commons’ majority managed few constitutional reforms: the removal of a number of aristocrats from the House of Lords; the creation of parliaments with limited legislative and budgetary powers in Edinburgh and in Cardiff; the election of two fairly eccentric Mayors of London; and the incorporation of the European Convention on Human Rights into UK law. The coalition government since 2010 has failed on almost all counts: a botched referendum on a non-proportional electoral system for the Commons; a failed reform Bill for the House of Lords; and, worst of all, an EU Act in 2011 whose main effect is to impose a referendum on the hapless public about continued membership of the EU, possibly as soon as 2017.

The flight to referenda is the desperate recourse of political parties having lost the will or capacity to face up to informed and decisive debate at Westminster. Populism, however, is no guarantee of democratic legitimacy, as Louis Napoleon Bonaparte (and many others) could aver. Plebiscites are good at shaking up the established order but seldom of any use whatsoever in settling complex constitutional issues.

There was no more futile claim made by either side in the Scotland campaign than their insistence that the vote last Thursday was the final decision about Scotland’s membership of the UK. As early as Friday, after losing by 45% to 55%, Alex Salmond, the Scottish Nationalist leader, was talking seductively of the prospect of another future referendum. Even David Cameron spoke of having only settled the matter ‘in this generation’. It certainly cannot be ignored that Glasgow, once the second city of the British Empire, has voted to leave the United Kingdom. Twitter had soon converted the Better Together slogan of the ‘No thanks’ campaign to Bitter Together. Salmond and his likely successor Nicola Sturgeon pointedly missed a service of reconciliation in Edinburgh’s St Giles Cathedral. I guess a generation in politics is about one decade long.

Cameron might have seen off Salmond, who resigned later that same day, but he has not satisfied that (large) part of his own Tory party which now marches to the beat of UKIP’s drum. The Prime Minister’s proposal immediately to exclude Scottish MPs from voting on ‘English’ matters at Westminster hardly smacked of magnanimity in victory. It is a wonderful conceit shared by many in London that a change in the rules of procedure of the Commons amounts to radical and durable constitutional reform.

It is interesting to consider the future of the UK in the light of what has happened in Belgium. Belgium’s national problem is not identical to Britain’s, of course, and is complicated by a sectarian language issue that does not affect Anglo-Scottish relations. But Belgium’s answer has been, over the years, to install and then tweak a federal system of government under a constitutional monarch who is a Saxe-Coburg-Gotha cousin of Queen Elisabeth II. Today, Belgium’s federated kingdom serves to accommodate the jealousies of its component regions and the competing claims of its political parties. What dominates the media day-by-day in Belgium is not so much the confrontation between Flanders and Wallonia but the politics and the politicians of the country’s big cities: Ghent, Antwerp, Liege, Charleroi and Brussels. Decentralisation in Belgium is the mundane political, economic and social reality. It is a bit costly and surely complex, and nobody fools themselves that the national problem is ‘settled’ for good.

There are lessons to be learned here for the UK. When self-government was invented in Flanders under Spanish tutelage, the English and the Scots sat up and took notice. They should do so again. Britain is not Belgium, but it is quite Belgian in needing to become a more sophisticated democracy.

The first lesson is to revive the federal idea in Britain. A system in which each level of government is coordinate with each other but none is hegemonic seems to be a rational starting point. Federal law has primacy, as indeed does EU law, but checks and balances preserve harmony. The dominance of England, being so big, must be catered for by its sensible partition into large regions. London is already a powerful city-state. Four regions in the rest of country would work well as functional polities: the South East and East Anglia, the South West, the Midlands, and the North. Within these regions, once-powerful municipalities, the engines of economic growth, should be restored to their former glory. A decentralised NHS could scarcely do worse than the current behemoth. Whitehall should be stripped of its omnipotence in education. Autonomous local government, with assets at its disposal, would compete healthily for investment.

The federal solution is above all a pragmatic one. The House of Lords would do well adapted as a federal chamber. The rehabilitation of federalist thought might make the Brits understand Europe a little bit more. And a federal United Kingdom, with Home Rule for Scotland, Wales and Northern Ireland alongside powerful self-confident English city-states, might prove to be a more convincing basis for the future of the European Union than the old, creaking nation state. Worth a try. Suck it and see, in the best British tradition of constitution mongering.

Andrew Duff is a former local government Councillor and Member of the European Parliament. He is a federalist and a Liberal.



One knew, of course, that Jean-Claude Juncker is well possessed with a dry sense of humour. How delightfully on display is his sharp wit in the disposition of portfolios to his new college of Commissioners.

While claiming falsely, but as he must, that “I have given portfolios to people – not to countries”, Juncker has identified the trouble spots and appointed the Commissioner-designate from the most troublesome country to look after that very dossier.

So Frans Timmermans of the eurosceptic Netherlands, who has been agitating for less regulation, more subsidiarity and more powers for national parliaments (at the expense of the European Parliament), is put in charge of regulation, subsidiarity and ‘inter-institutional relations’.

The German Gunther Oettinger who hails from the country that is the most protectionist against US digital enterprise is given the digital agenda portfolio.

Jonathan Hill, who comes from the most eurosceptic country of all which also happens to have suffered Europe’s largest banking crisis, is put in charge of fighting the City of London over the harmonization of financial services. The Irish, like the British, are filled with self-congratulation about their Commissioners’ job. Both are equally deluded: Mr Hogan has the bankrupt CAP.

Pierre Moscovici, from the eurozone country with the most rickety fiscal stance, is put in charge of the excessive deficit procedure. It’s rather like putting a Greek in charge of immigration policy – Oh!

Johannes Hahn is to manage EU enlargement. He comes from Austria, a country which has scarcely recovered from finding the Turks at the gates of Vienna, and whose Crown Prince was recently assassinated by a Serb in the Balkans. And Tibor Navracsics, the nominee of Viktor Orban, that stickler for civil liberties, of course gets citizenship.

Overall can already admire Mr Juncker’s handiwork. His college promises to be edgy and more political than Barroso II. The elevation of all those ex-prime ministers to vice-presidencies may make this Commission more collegiate and less presidential than the last. Perhaps it is Catherine Day, the powerful Commission Secretary-General, who has most to fear from the new regime.

Given that Jean-Claude Juncker had to find 27 jobs for people he did not pick and hardly knew (if at all), he has filled almost every possible policy dossier, sometimes twice. One is left wondering what on earth would a new Commissioner be given to do were he or she to turn up soon from Scotland.

* As you ask, GSOH is the abbreviation for ‘Great Sense Of Humour’ used by frantic lonely hearts in their personal ads.


Andrew Duff looks at the third, concluding phase of the Spitzenkandidaten experiment for the appointment of the new European Commission. He finds that the initiative now lies with President-elect Jean-Claude Juncker.

We have now entered the third and final phase of the constitutional innovation, introduced by the Lisbon treaty, on the matter of the election of the new European Commission.

The first two phases of the Spitzenkandidat experiment have been remarkably successful: the political parties duly put up champions to lead their election campaigns for the European Parliament; the more successful of those, Jean-Claude Juncker of the European People’s Party, was then nominated on 27 June by the European Council – despite some squealing – to succeed President Barroso. On 15 July, the European Parliament returned the compliment by giving Juncker an endorsement of 422 votes – a respectably larger vote than that the 409 votes it had accorded Martin Schulz, the runner-up Spitzenkandidat, for his election as President of the Parliament.

The third stage will tell us whether the new method really works. Will the President-elect, enjoying the strong dual legitimacy of both Council and Parliament, be able to shape the formation of the new Commission more or less to his taste?

Size and shape of the new Commission

Jean-Claude Juncker makes it clear he wants a gender balanced, pluralist college which delivers results. Good. But it is worth noting that his pitch for greater efficiency and effectiveness is already hampered by the decision of the European Council (of which he was then a part) to resile from the formula of the Lisbon treaty whereby the size of the Commission would be reduced in 2014 to two-thirds the number of member states. So he is lumbered with finding 27 colleagues for whom he needs to give respectable (if not always large) jobs.

The first shoes to fill are those of Cathy Ashton, the first Vice-President of the Commission who is also the EU’s High Representative for foreign affairs and who chairs the Council of Foreign Ministers. The treaty gives the power of this appointment to the European Council, with the consent of the President-elect. On 16 July, as we saw, the European Council failed to make the appointment of the High Rep. There are several reasons for this failure, mostly good, and all highly political: party, region and gender are all relevant factors in reaching a decision on top of the question of individual expertise and inclination. The fact is that nobody yet quite fits the bill. The problem is that without Ashton’s successor in the frame the rest of the package deal will be elusive.

The European Council cannot be envied, not least because the size of the package deal is smaller than it used to be. The Spitzenkandidat exercise has deprived the prime ministers of their former freedom of manoeuvre over the Commission presidency itself. There is also a sequencing problem: not all the jobs they have to fill come up at once. The precipitate decision to appoint a new NATO secretary-general earlier this year deprived the leaders of another useful bargaining chip. Herman Van Rompuy, the current President of the European Council, appears to be in no hurry to see his successor appointed (his term continues until the end of the year), while the post of chair of the Eurogroup does not need to be filled until next summer. And nobody dare speak of the identity of the President of the Convention which will have to be called in due course to revise the EU treaties.

So having failed to find a foreign minister, the European Council has left the matter officially until reconvening on 30 August. In the meantime, each government must make a formal nomination to the new Commission. Several prime ministers are rather unhelpfully pitching for specific (and often the same) portfolios. Most, including Cameron, Hollande and Merkel, are ignoring the need for gender balance. Renzi, while proposing a woman, is going for broke on the High Rep.

Jean-Claude Juncker, whose job it is to distribute jobs within the college, can – and, by all accounts, will – stand up to these unseemly demands from national capitals. His role has subtly changed, in this third phase of the process, from being the President-designate of a political party into President-elect of the Commission, whose task it is from now on to seek and find the general interest of all states and citizens.

Each Commissioner-designate will run the gauntlet of European Parliamentary hearings in September, where they will be tested for their competence, European commitment and indubitable independence. Then the entire Juncker college, plus its full political programme, is subject to a vote of MEPs – an open ballot by simple majority – in October. No national government in Europe is subjected to such a thorough inquisitorial parliamentary process.

The direction to take

Juncker already has the advantage of having published his ‘A New Start for Europe: Political Guidelines for the next Commission’, with ten political priorities covering jobs, growth, fairness and democratic change. These offer an intriguing contrast to the ‘Strategic Agenda for the Union in Times of Change’, which was offered up by the European Council at its June meeting. The latter document fulfils the European Council’s role of defining the general political directions and priorities of the Union for the next five years. The European Council wants an EU which is ‘stronger outside, more caring inside’. It advocates ‘stronger euro area governance and stronger economic policy coordination, convergence and solidarity’. But couched in such (inevitably) wide and ambiguous terms, it falls to the new Commission, and especially its President, to set the real political and legislative agenda – not least in terms of democratic renewal.

On the High Rep, Juncker says he wants ‘a strong and experienced player to combine national and European tools, and all the tools available in the Commission, in a more effective way than in the past’. He will establish a cluster of Commissioners under the new High Rep for the dossiers of trade, aid and development as well as for the key geographical regions. He also wants Commissioners with specific portfolios on rights issues and on immigration policy.

In terms of economic policy, Juncker will take forward the 2012 (but since seemingly abandoned) paper of Van Rompuy on ‘Genuine EMU’, and pursue enhanced convergence in the economic, fiscal and labour market policies of the eurozone. In legislative and budgetary terms, there will be a new special fiscal capacity for the eurozone, more emphasis on the social dimension, and better parliamentary control of the EU’s economic governance at both European and, where relevant, national levels.

Come the autumn much more flesh will be needed on a programme for the Commission if it is to serve Europe usefully for its full five year term. If the second term of Jose Manuel Barroso was characterised by crisis management, the first (and only?) term of Jean-Claude Juncker must be a time of steady reform and consolidation – the era of internal enlargement of the Union. In particular, a further round of budgetary reform (including revenue) is badly needed, and new financial instruments created to bolster investment beyond the €300bn so far envisaged.

In constitutional terms, the EU must be let to evolve logically so that its capacity to act effectively and legitimately keeps pace with the demands made on its system of government, at home and abroad. Not least among the challenges is Britain’s problem with European integration – a problem which grows larger by the day, and remains to be confronted, not least by the British themselves.

In this context, Jean-Claude Juncker has made a good start on his mandate. He is making a serious pitch for the appointment of a more political Commission whose task is to drive an agenda aimed at building a stronger, more united and democratic Union. As a federalist, I wish him well. Were I a nationalist, I should be worried.


The European Union’s Leadership Crisis: who’s to blame, and why it matters

Posted by Andrew Duff on 23/06/14

I’m actually getting a bit bored by the argument over the rights and wrongs of the Spitzenkandidat adventure. But as I and my federalist friends have been accused of manipulating a ‘power grab’, and even of instigating a coup d’état, and in the interest of record, here we go. (Those tempted to boredom should go and watch the tennis.)

The idea that the new President of the Commission should enjoy the dual legitimacy of having been elected by both the European Council and the European Parliament surfaced at the Convention on the Future of Europe in 2002-03. It was an idea promoted by the federalist camp in the Convention – led by revolutionaries like Elmar Brok and me – as a counter to the more radical and headline grabbing proposal from the Convention’s president, Valéry Giscard d’Estaing, that the European Council of heads of government should have a ‘permanent’ full-time chair.

So it was that Article 19(1) of Part I of the Treaty establishing a Constitution for Europe (2003) says that the Parliament ‘shall elect the President of the European Commission’. Article 26(1) goes on to say: ‘Taking into account the elections to the European Parliament and after appropriate consultations, the European Council, deciding by qualified majority, shall put to the European Parliament its proposed candidate for the presidency of the Commission’. This constitutional treaty was agreed at an Intergovernmental Conference by the then Labour government, as well as by the Liberal Democrats. The agreement of the British government was not irrelevant because it had been John Major who in 1994 had vetoed the appointment as Commission President of arch-federalist Jean-Luc Dehaene (whom we recently mourn), and it was Tony Blair who, ten years later, vetoed the appointment of arch-federalist Guy Verhofstadt (happily still with us). (Just for the record, we got the illustrious Jacques Santer and José Manuel Barroso instead.)

In 2005 the constitutional treaty was sunk by the referendums in France and Holland – though probably not because of outrage provoked by the proposed new system for the election of the Commission President. By the end of 2007, Giscard’s scuppered treaty had transmogrified into the Treaty of Lisbon, which was fully ratified in 2009 by the British Parliament. Two substantive changes were made to the procedure for the election of the Commission President. First, the European Parliament was to vote by an absolute and not a simple majority of its Members (Article 17(7), Treaty on European Union). Second, the Lisbon Intergovernmental Conference added a Declaration to the treaty to provide more detail on the electoral co-decision between Council and Parliament. Both changes served to consolidate the constitutional character of the procedure.

Declaration 11 is worth citing in full:-

‘The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 17(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.’

In the light of the controversy surrounding the emergence of Jean-Claude Juncker, it may be regretted that Herman Van Rompuy, the President of the European Council, did not see fit to execute the common accord on the detailed arrangements provided for in the last sentence.

Who’s Your Candidate?

In the 2009 elections, the federalists had a campaign aimed at the EU level political parties entitled ‘Who’s Your Candidate?’. But the fact that the incumbent Commission President, José Manuel Barroso, was destined to have a second term blunted its effect. During the course of the 2009-14 mandate, I attempted to go one step further and introduce, by a change to EU primary law, a pan-European constituency for which a certain number of MEPs would be elected from transnational party lists. Lacking a majority for this radical change to the electoral procedure, in 2012 Parliament fell back on a resolution, also drawn up by me, which invited the European political parties to nominate champions to lead their election campaigns. In doing so, Parliament was putting some political flesh on to the constitutional skeleton. Our purpose was to bolster the role of the European political parties in the election campaign, and to raise the European dimension of the electoral debates which had previously been entirely national. The nomination of party champions, we believed, would help to personalise the campaign in a way which would be easier for the media to report and more recognisable to the electorate. Turnout mattered.

Some months later, President Barroso and his Commission formally agreed to support Parliament’s initiative. When the matter was discussed in COREPER (the conference of the ambassadors of the EU member states) no decision was taken either to support or to deflect Parliament’s interpretation of the new Lisbon rules. The new approach was hotly debated in COSAC (the conference of EU national Parliaments), and promoted by the European Parliament’s communication campaign: ‘This time it’s different: Act. React. Impact’.

The European political parties, obliged to respond, broke new ground. Rules had to be invented for the internal selection of top candidates, and special congresses held. Martin Schulz was first into the ring at Leipzig in November. The Greens held a primary election. At the EPP congress in Dublin in March, Jean-Claude Juncker won in an open contest against Michel Barnier, the unsung hero of the Spitzenkandidat exercise. If Angela Merkel had wished to stop the process, she could have done so then and there.

London, as usual, was in denial. The British have never really understood the political nature of the Commission. Nor do they seem to grasp that the EU has a bicameral legislature. Constitutionally illiterate and driven by off-shore domestic obsessions, few in Whitehall or Westminster woke up to the changes afoot. Having withdrawn from the European People’s Party in 2009, the Conservative Party has no engagement with mainstream mainland party politics – making risible its desperate claim to see in the German CDU its natural fraternal party while, at the same moment, they admit the right-wing conservative AfD to their group of MEPs. Labour abstained in the process by which Martin Schulz eliminated all potential rivals to emerge as the nominee of the Party of European Socialists. The Liberal Democrats were divided by Nick Clegg’s peremptory decision to support Olli Rehn as Guy Verhofstadt’s rival in the race to become the Spitzenkandidat of the Alliance of Liberals and Democrats for Europe (ALDE) – but at least the Lib Dems took part in the process, and accepted the outcome.

This Time, It’s Different

The astonishing thing, at least to me, is that the Spitzenkandidaten experiment has worked so well. Admittedly, Juncker, Schulz and Verhofstadt have not become federal folk heroes overnight, but their presence, and that of the Greens’ top candidate Ska Keller, was certainly felt in the election campaign among the intelligentsia. This time the European Parliamentary elections were indeed a bit different. After thirty five years, turnout rose. The sharper electoral contest has led to a larger understanding of the importance of the choice of the Commission President. Witness the media frenzy.

Throughout the adventure, the European Parliament has acted within the letter and spirit of the Treaty of Lisbon. It is natural that the four mainstream pro-European parties which took part in the election are now backing the lead candidate of the EPP, the largest group, to become Barroso’s successor. The ball is in the court of Van Rompuy, who acts in the Belgian way as informateur. Later this week, he will propose to his colleagues in the European Council that they nominate someone who commands a qualified majority among heads of government and an absolute majority in the Parliament. Having been heard in the groups and in the plenary, the parliamentary election will take place by secret ballot in Strasbourg in 16 July. If the nominee has not won over 376 MEPs, the European Council has one month in which to come up with an alternative name – all in accordance with the Treaty.

If this is a ‘power grab’ by the European Parliament, I am proud to be complicit in it. Time was when a parliamentary blow against autocratic rule would have been lauded by the British Establishment. It is ironic that what is deemed fine by the UK for, say, Burma is considered to be scandalous for the European Union.

David Cameron argues that Juncker is too much of an old-fashioned federalist to be Commission President. Yet he has no other candidate to put up. And, despite vain claims, Cameron has no coherent reform programme of his own. He has engineered for himself a presumably deliberate defeat at the hands of (mostly) continental federalists. What profit this brings him, his party or his country I am not able to say.

Those who wish the European Union well, however, can expect to get out of this crisis of leadership a stronger and more legitimate European Commission.


On 1 July my fifteen years as an MEP come to an end. I will continue to blog here from time to time as and when I have something intelligent to say on how a more united Europe might best be governed.