Prawdziwe przewartościowanie i ożywienie europejskich ideałów nie będzie kompletne, jeśli Unia będzie nadal odwracać wzrok, dygotać, zwlekać, gdy jej własne aksjologiczne podstawy są atakowane przez jedno z państw członkowskich – pisze prof. Tomasz Tadeusz Koncewicz w bardzo aktualnym komentarzu w Verfassungsblog.de
The war in Ukraine has brought a moment of the constitutional reckoning and the ultimate test of belonging for the Europeans. The ill-fated politics of appeasement and dialoguing with a criminal has come crushing down. Finally, Europe seems to take a more strategic and long-term view of its own politics at least when it comes to common foreign policy and defense. “Our Union is showing a unity of purpose that makes me proud … We are more united than ever and we will stand up in this war, that is for sure that we will overcome and we will prevail. We are united and we stay united … We are resolute, Europe can rise up to the challenge”. These are quotes from the speech of the President of the European Commission Ursula von der Leyen at the European Parliament Plenary on 1 March 2022. So far, so good. However, these commendable exhortations come from somebody who is clearly short on the political imagination and fidelity when it comes to enforcing the core values of the Union against the Union’s own member states. Engineering deals that strike at the heart of the Commission’s mandate as guardian of the Treaties is one of many examples of how things have gone awry for the Union under the leadership of the current President.
The Union at a critical juncture
In this analysis, I argue that true re-appraisal and reinvigoration of European ideals will not be complete if the Union keeps looking the other way, dithering, procrastinating when its own axiological foundations are under attack by one of its own member states. While the Germany’s paradigm change and a wake-up moment are first steps in the right direction, the decades of “merkentelism” (for an excellent analysis of the phenomenon see here) that stands for chronic indecision and for saying nothing on matters of principle has dogged the EU politics for too long now. Appeasing autocrats for years and putting geopolitics and economy before principles call today for much more than just nice figure speeches from the politicians who not long ago were more than happy to accommodate Putin and treated him as a peer. The present coming-together moment offers a good opportunity to re-engage with the dangers of the unfettered majoritarian politics. It brings to the fore the importance of infusing the European discourse with a more principled approach to integration beyond foreign policy and defense issues. We must resist the all-too-easy temptation to think that the tragic war in Ukraine, the solidarity shown to the plight of its citizens and the full-mouths of avowed unity have now cancelled all the rifts and tensions when it comes to the Union’s blindness in dealing with its own internal crisis of foundations on which it is (allegedly) based, and chief among them – the rule of law. The tragic war must not be used as a convenient excuse to forget about the still unfinished business of making sure that European values are indeed shared and respected by all.
Remembering why the states joined in 1952 is fundamentally important as the EU moves forward, ponders, and narrates its myths, and scrambles to respond to the gravest threat to the post-war settlement. Only respecting the core of constitutional essentials of the consensus, commitment of the member states to the core and a special ethos of membership can cumulatively ensure long-lasting credibility and legitimacy of the supranational design and governance. The supranational critical juncture brings to the fore the questions not just of design and governance (narrative building and actors’ fidelities) but also content that embraces shared values (supranational legality) and the purpose of the Union and its self-understanding (fight the illiberal democracies or accommodate them?). The unstated and implicit assumption of a community made of liberal democracies is being challenged and pitted against the rival rebirth of the nationalistic narrative of uniqueness and self-sufficiency. In other words. the readiness to live together is on the line.
Three elements should be front and centre.
1. Understand the moment
Centrifugal tensions are not new to the supranational legal order. Yet, when they start affecting the very fabric of the supranational governance and design, our discussion must be taken to another level of conceptualization and problematization. These tensions have now moved beyond the technical and traditional dichotomy of “market regulation v deregulation” and “Union competence v Member State competence”. Instead, they have zeroed in on the big questions of the mega-politics centered around belonging and identity among the European peoples. With Poland and Hungary it is the sacrosanct ever closer union among the peoples of Europe that seems to be the focal point of the principled disagreement. Dealing with the systemic internal and external shifts that the supranational legal order undergoes, one must avoid danger of being trapped in the world of legal expertise and arcane legalistic approaches to the current crises. The question “how” the EU governance should be adapted and react must go hand in hand with revisiting the neglected “why“ question – why the Union acts to defend voluntary commitments and duties adopted by the states on accession. Unfortunately as things stand right now, domestic rule of law and democratic processes are unfortunately of no concern to Dutch, French etc. people.
2. Defend the European consensus
Few remember that, when the Paris Treaty was signed in 1951, the notion of a community of European states was underpinned by the shared assumption of certain constitutional essentials. These had led the signatories to come together despite all their differences and the distrust. These essentials were not expressed in the form of a text but were instead understood as unspoken tenets emerging from a legal culture shaken to its core by the experience of totalitarianism and total war. The European Coal and Steel Community, and the European institutions that grew from it, all acclaimed the triumph of liberal democracy. In 1951, no one could have predicted that any individual country might call into question the liberal foundations of the post-war European order. Now, Poland does so on a daily basis. The premise on which the post-war European order was built is failing to stand the test of time.
We appear to be dealing with a ‘constitutional design error’, which becomes fatal when coupled with the lack of imagination and spinelessness of the European leaders facing (or rather refusing to face) the emerging autocracy in their midst. Short term political gains and calculations take over the long-term commitment to the European project. Therefore, to make the Union more responsive to democratic threats, it is crucial that all actors acknowledge their commitment to shared democratic aspirations, core values of dignity, equality, and freedom, and embrace the project as their own.
The post-1945 liberal consensus was built around the paradigm of never-again constitutionalism and reinforced by the legal commitment to ensure that dictatorship would never again arise out of constitutionalism. Political power at the domestic level was to become subject to new international and supranational checks and balances with the legitimacy of the power depending on continuous adherence to the core values of liberalism, values that transcend momentary desires. The gist of the European consensus has been always the acknowledgment by the parties that they are ready to find similar grounds of understanding of their principal commitments. The consensus was pragmatic as it has always presupposed a disagreement that would be managed over time to build a common understanding of the basic principles. However, parties with unreasonable and irrational doctrines that question the liberal democracy as a form of government were to be excluded from the consensus because disagreement must not undermine all parties’ commitment to support liberal democratic principles under a democratic constitutional regime. The emerging constitutional doctrine of the politics of resentment on the rise is anything but reasonable within the consensus’s meaning. It poses a mega-politics question of belonging and identity. If other parties’ commitment to the consensus continues and their resolve to defend the basic principles on which the consensus is based is genuine, this question must be addressed sooner rather than later. The war in Ukraine makes this challenge even more pressing.
3. Rethinking the essence of the membership (in crisis?)
For the Union to survive, the language and perspectives through which it looks at the Member States must be challenged and consequently change. Today’s essential characteristics of EU law must go beyond the traditional and revered First Principles of supremacy and direct effect, to also embrace the rule of law, separation of powers, independence of the judiciary, and enforceability of these principles as part of the ever-evolving consensus. The states must speak with one voice and reaffirm their commitment to the EU values that underpin the community not simply when war beckons.
All actors are called upon to rethink their allegiances and frame them firmly within the framework of values. It is recognized that rethinking the membership would focalize the problem of systemic deficiencies in the functioning of the liberal democracies at the level of domestic politics. The value discourse around commonalities provides a truly paradigmatic turn in the studies on the supranational governance and design. It invites first order questions, neglected so far, of belonging and identity and of our continuous willingness to live together as part of the supranational political community. If you reject the Court’s jurisdiction, you betray the consensus. With such a rejection the European Union is becoming a union of systemically different Member States: States that are unwilling, as opposed to unable, to share the same values and live by them as part of their original consensus for coming together.
No doubt, the question of who will be the constitutional storyteller of the union’s First Principles is crucial. For any myth to survive, though, supranational governance and design need not only crafty storytellers but also a good story to tell, an engaged audience to listen, counter-strategies to defend the myth(s), and counternarrative(s) to explain and justify the original consensus that brought states and European peoples together. The EU seems to be falling short in all these registers. It had to come to the war in Ukraine to make the leaders finally start talking in the language of „living together” and putting their petty cynical politics aside. For how long is another question. The Union has a chance to survive, when all actors operating within the EU legality will be able to profess and renew on a continuous basis their fidelity to the core non-negotiable principles of the European public space. It took a war for the European decision-makers to finally start on taking the big questions of today in a bold and imaginative way.
In March 2022 „the ever-closer union” continues to be bound together by statal membership with the citizens still lurking in the shadow of the narrative. If the union of states does not make a leap towards community of values, shared legality and practice enforced in the name of the European peoples will be constantly called into question.
The war in Ukraine and the spectre of Putin’s cruelty and autocratic mind brought states of the Union together and made the Union great again even if only for a while. The big question and the challenge are different: Will the Union show finally the same resolve when it comes to enforcing its own values internally? The unity of purpose must not stop at the issues of foreign policy and/or defense. Only when the rule of law as a First Principle of the ever closer union among peoples of Europe is respected internally, the politician’s claim to Europe being resolute, great, and united will take on a true meaning beyond the slick slogan.