Year XXXVII, Number 1, March 2024

Andrew Duff
Senior Fellow at the European Policy Centre. Former Member of the European Parliament,
President of the Union of European Federalists, and Director of the Federal Trust.

In its time, Europe has known a lot of empires. Some, like Napoleon’s, arose from an excess of revolutionary fervour. Others, pre-eminently the Hapsburgs, were based on dynastic inheritance. The Soviet Union was forged by Bolshevist ideology. The Ottomans had a religious cause. Some empires were more enlightened than others, but all were disrupters of the previous balance of power between Europe’s states and principalities. All faced challenges in managing within the empire diversity of religion, ethnicity, nationality and language. Most empires confronted the rise within their lands of what Christopher Clark calls the “miraculous alchemy of nationalism”. Imperial rulers, struggling to maintain unity and resist separatism, inclined to the centralisation of government tempered by (variably successful) experiments in provincial autonomy.

Defence of the empire against external threats became an overriding imperative. Every successive empire faced trouble at its borders, often forced into military skirmishes, even if it resisted the temptation to expand its own realm further. Sometimes colonies were obtained almost by accident, especially in the Balkans. Empires both repelled and attracted neighbours. The advent of a new imperial power in Europe would have consequences much farther afield: few places on Earth were, or are, wholly unaffected by European geopolitics.

The latest entrant to the imperial stakes is the European Union. True, the EU does not think of itself as an empire. But look again. Now in its eighth decade, the Union has taken on many internal characteristics of empire building. Latterly the EU has had to assume a duty of care to its own security and protection. This paper looks at some of the similarities between Europe’s imperial past and the present state of the European Union.

War, peace and market

Russia’s invasion of Ukraine has pitched the European Union into taking unprecedented measures for collective defence. The war seems unlikely to end with a decisive military battle. Indeed, it may never really end at all. NATO and the EU will continue to prevent Ukraine’s defeat, but they cannot act to secure its victory. Neither Moscow nor Kyiv wants to negotiate a ceasefire. Ukraine at war has applied to join NATO and the EU, and is apparently welcome to do so. The EU, therefore, that was founded as a peace project, must now bear the burden of a prolonged conflict with Russia. Europe’s future is once again unstable and insecure. Its central actor, the European Union, must move promptly to consolidate its power. President Macron of France calls this the assertion of “sovereign autonomy”.

When Vladimir Putin is eventually toppled, he may not be followed in the Kremlin by a peacemaker. Europe is unlikely to return to the heady days of the Paris Charter of November 1990, which President Gorbachev signed on behalf of the Soviet Union to mark the end of the Cold War. The Charter, agreed by the European Community and the 34 countries of the Organisation of Security and Cooperation in Europe (OSCE), was a remarkable vision of a liberal democratic united Europe, based on irrevocable human rights and fundamental freedoms.

That same year saw the European Union embark on twenty years of reform aimed at deeper integration and wider membership. The EU treaties went through five revisions. Criteria were established to guide candidates towards what they had to do to become members, as well as to protect the acquis communautaire of existing member states. EU citizenship made its appearance. A Charter of Fundamental Rights of the European Union was promulgated. By 2013, the EU had grown from 12 member states to 28.

But enlargement was not unproblematic. Each new accession disturbed the balance of interests within the Union and introduced new challenges at the borders. Enlargement to countries of the ex-Soviet bloc did not help to define the Union’s identity. On the contrary. The federalist assumptions behind the classic teleology of “ever closer union” became blurred. In its place, confusion. The EU was much more than a common market, but much less than a state. It never became the hoped-for European pillar of NATO. When the Balkans went to war, it was the US that had to intervene — afterwards leaving the EU to prop up the broken states of Bosnia Herzegovina and Kosovo. EU enlargement to the Western Balkans, let alone Turkey, was promised but never delivered. The EU did next to nothing to stop Russia from invading first Georgia and then Ukraine. Then Britain — with France the EU’s only serious claimant to military power — left the Union altogether.

Internally, meanwhile, completion of the single market for goods, people and capital led inevitably to the harmonisation of flanking policies in many fields such as social policy, environmental protection, energy policy and R&D. Attempts to extend the free movement of services sparked reaction. Ambitious goals were set to harmonise many elements of justice and home affairs policies, asylum and immigration. Economic and monetary union was proclaimed, but political will was lacking to follow through the introduction of the single currency with a fiscal union. A banking crisis risked the ejection of Greece from the eurozone. Constitutional reform stalled — leaving the governance of the Union poised nervously between confederal and federal, both intergovernmental and supranational. Right-wing nationalist governments in Poland and Hungary now openly challenged the legitimacy of the EU’s treaties, its institutions, and the rule of law.

The rule of law

Like its imperial predecessors, the European Union has tried to entrench the rule of law. Indeed, one may wonder what is left of the pact between member states if the rule of law is jettisoned. The rule of law is not only a practical instrument implying uniform application across all member states of EU legislation and regulation, but also an article of faith reflecting liberal democratic values.

In constitutional terms, the centrality of the rule of law rests on the duty placed on member states to ensure effective legal protection in the fields of EU law, and on the right of every EU citizen to an effective remedy and fair trial. These primary law provisions are buttressed by the principles of the primacy of EU over national law, and the commitment to sincere cooperation between the Union and its member states.

In operational terms, dedication to the EU’s rule of law means decent systems of justice, functioning mechanisms to fight corruption, guaranteed freedom for pluralist media, and viable checks and balances within democratic governance. The Commission has instituted annual reports on the rule of law in each member state, and the Council has to make of them what it will. The Commission and European Parliament have sought to instrumentalise the common values of the Union, as set out in Article 2 of the Treaty on European Union. The European Court of Justice, for its part, has delivered judgments that stipulate requirements for upholding the independence and impartiality of national courts. The Council has agreed to tie conditions on respect for EU law to disbursements from the EU budget. Consolidation of the rule of law is work in progress.

Wider still and wider

Conscious that an ever-expanding Union could dilute the level of integration achieved, the EU’s accession process has been made more robust. Large-scale irregular immigration from the Middle East and Africa has been especially difficult to manage. While the EU’s doors are still open in theory, the barriers to entry have been raised — particularly to emphasise rule of law reforms, anti-corruption campaigns and high standards of public administration. In so far as the EU identifies strongly with the rule of law, it differentiates itself from Putin’s Russia. Being not Russia is the basis on which the EU is building its geopolitical strategy.

The necessity of opposing the Russian outlaw obliges the EU and NATO to grow together without giving rise to the institutional and ideological differences that previously impaired collaboration between these two Brussels-based organisations. Brexit deprived the UK of the veto it used to wield against such convergence. Both Finland and Sweden, long standoffish, by joining NATO are greatly strengthening it. A NATO summit in Vilnius in July 2023 endorsed Ukraine’s path towards full “Euro-Atlantic integration”. Ukraine will join NATO “when Allies agree and conditions are met”. In the interim, a new NATO-Ukraine Council has been created, in which Ukraine and the NATO Allies “sit as equal members”.

After Putin’s invasion of Ukraine in February 2022, Russia was expelled from the Council of Europe and is no longer part of the legal order of the European Convention on Human Rights (ECHR). This should make it easier for the EU to fulfil its own constitutional obligation to accede as an entity to the ECHR. Previously, the European Court of Justice in Luxembourg objected to the terms under which it would have to accept the European Court of Human Rights in Strasbourg as its external supervisor. A new accession agreement is under negotiation. So long as the EU Court can guarantee retaining exclusive prerogative to decide when and how EU law applies, accession should be accelerated, leading to the closest alignment between the two courts, and the propitious development of a corpus of European human rights law fit for the 21^st Century.

Civis Europaeus sum

Another reform will further raise the stature of constitutional Europe: an extension of the rights of EU citizenship. At present, EU citizens resident in member states other than their own may not vote by right or stand as a candidate in national parliamentary elections where they live. It is important to extend the right of franchise. Political integration works through shared democratic participation. Every citizen deserves the right to vote for the ministers who represent them in the Council of the EU, as well as to take part in any referendum on EU matters.

The legitimacy of the European Parliament would be much enhanced were a portion of MEPs to be elected for a pan-EU constituency from transnational party lists. Such a reform of the electoral system would call into being proper political parties at the federal level, assisting the rise of a cadre of EU leaders and better connecting the citizen with Brussels. Transnational lists would add a truly European dimension to the European elections, boosting the representative capability of the Parliament. They would bolster Parliament’s claim, disputed by the Council, to nominate the new Commission president.

The European Union faces a perennial leadership crisis, quite like Europe’s old empires. Because the locus of EU government is so poorly defined, nobody really knows who’s in charge. There are three centres of executive authority — the Commission, the European Council and the Council of Ministers —, and several other actors with delegated executive authority, such as the European External Action Service and the many agencies that have sprung up over the years to administer and monitor EU policy in specific sectors. These include the Union’s first federal mechanisms in the matter of external border control (Frontex), combatting crime (Europol), judicial prosecution (Eurojust), and anti-fraud squad (OLAF).

Membership of the European Council and Council changes all the time as the 27 member states shuffle their governments. Membership of the European Commission and the Presidency of the European Council change once every five years after the general election of the European Parliament. 2024 is one of those years. Allowing the next Commission President to chair the European Council would address at least some of the problems of incoherence, inconsistency and over-complication at the top of Union governance.

As the EU struggles to locate its government and streamline the way decisions are taken, there are still several missing pieces of the jigsaw. There is no Treasury Secretary, for example, running a common fiscal and economic policy. MEPs can vote on the expenditure side of the EU budget, but not revenue. There is no Attorney General advising on and enforcing EU law. The European Court of Justice has not yet attained all the appurtenances of a federal supreme court. The European Central Bank is not yet the lender of last resort.

A federal moment

Amid this uncertainty, the European Parliament is now voting on a large package of proposals to amend the treaties. Its main objective is to enlarge the scope of qualified majority voting in the Council, reducing the prevalence of national vetoes. The switch from confederal to federal methods of decision-making applies as much to security and defence as to economic integration. As the founding fathers of the USA quickly realised, no federal union can long survive under the shadow of the unilateral veto.

Parliament’s package will be sent on by the Council to the European Council, which must then decide, by simple majority, whether to call a constitutional Convention for 2025. President von der Leyen has charged the Commission with producing its own “pre-enlargement reviews” of common policies and institutions. Most of the Commission’s recommendations will coincide with those of Parliament, containing demands for what is (sometimes derisively) known as ‘more Europe’. Expect the rule of law and security and defence policy to feature prominently. Fiscal union, to secure the euro, requires the accretion of powers of direct taxation. The ‘green deal’ implies recalibrating the EU’s relations with its less green neighbourhood: the Carbon Border Adjustment Mechanism, for example, is bound to be resented by some third countries.

Talking of the neighbours, the Commission would do well to propose the installation in the treaty of a new formal category of affiliate or partial membership of the Union. Multiplying its options would help the Union cope with the pressures of enlargement. EU affiliate membership could suit Ukraine, Moldova and the Western Balkans as a staging post on the way towards full accession when circumstances permitted; it could be a useful relegated status for Hungary and Poland; for Norway and Iceland it would represent an upgrading of their current association agreements; and for the UK, perhaps, affiliation will prove to be the long sought, barely articulated, permanent parking place, alongside the EU.

The outcome of this episode in constitution-mongering will determine how centralised the government of the Union is to be over the medium term, as well as how it intends to relate to the rest of Europe. This is a time for the federal centralisation of essentials. Such reform must be accompanied by more robust democracy and the decentralisation of non-essentials. Europe has no enlightened despot to do this for us. We shall have to do this ourselves, on our own resources and with our own political will.

We should remember that empires rise and fall. The more federal the European Union, the quicker will it rise and the slower will it fall.