The Sarkozy-Blair duo has put its seal on the mini-Treaty reforming the EU. A new institutional framework is born, although hidden in the small print and secondary clauses of the Brussels Treaty. How did it happen that such an odd couple delivered the goods? Sarkozy was in favor of a Europe that allays the fears of its citizens asking for security and protection in the face of globalization, while Blair was determined to defend the traditional British view that sees Europe limited to the Single Market. There is no doubt that the aspiration of a Federal Europe of citizens, i.e. the supranational framework that had been in the making for fifty years, has now been abandoned in favor of a European Confederation of States. The new EU will have some coordinating and representative institutions (a five-year Presidency of the Union and enlarged powers for the High Representative for Foreign Affairs) and will inherit the unitary juridical profile of the now-defunct Community, but it will be able to operate only with the unanimity of its 27 member countries.
Certainly, the core of Community competences remains and the duplication of Union and Community is terminated. The Commission is rendered nimbler, the role of majority voting gets enlarged, and the joint decision-making of Council and Parliament is expanded. But strong fences have now been erected against further expansion of the Union into areas traditionally reserved to national governments. Thus the scope for legal subsidiarity has been significantly expanded and the discretionality of national policy over public services significantly widened. Also, all competencies unused by the EU now return to member states. And, due to Sarkozy’s tirade against the vagaries of the free market, states are now free to subsidize national companies and make them non-contestable (préférence communautaire notwithstanding).
The answer to the French-Dutch no has not been about improving the institutional efficiency and decreasing the democratic gap of the EU. To the contrary, a return to the full sovereignty of states seems the new trend, with very strong constraints on the pooling of sovereign attributes. The idea is that an inter-governmental Europe, based on the alliance between France, Germany and Great Britain, will be able to pull along a Europe of 27 States.
The outlook of the new scenario is highly uncertain. The strange alliance between French anti-liberalism and British anti-unionism risks deluding both, by endangering the unity of the Single Market in favor of national champions, while Continental firms will have to compete with British counterparts unimpeded by the respect of common social standards. And reborn national selfishness will certainly endanger the acquis communautaire. Only the European Parliament, the great loser of the June mini-Treaty, can go against the new tide, by affirming the democratic legitimacy it has been unable to enforce since its constitution in 1979.
by Giorgio Sacerdoti,
Professor of International Law, Università Bocconi, and Appeal Court, WTO