The European Union already is a polity. It can take decisions that are binding on its member-states and their citizens … admittedly, by a very complex, multi-layered & multi-centric process that does not imitate or even closely resemble that of any previously or presently existing polity. Which makes it very difficult for those affected by its decisions even to describe it, much less to understand and accept it as legitimate.
In a previous EP, I have suggested that the closest existing descriptor is something that academics have historically called a “consociational democracy.” Since this label is virtually indigestible, I propose to shorten it, resort to Latin, and call it a “consortio.”[1] Its defining characteristic as a democracy rests on its emphasis on the differential weighing of intensities of interest and identity among its citizens, rather than on the usual equal counting of their votes. Of course, the EU does count votes in elections to the European Parliament and in its decision-making in the European Council and Council of Ministers, but even in these cases they are consciously weighted according to the principle of “digressive proportionality” (over-weighting of smaller units), if not according to the principle of “unanimity”.
One of the most unique features of this Euro-consortio is its constitutionalized right of exit. Any member-state can voluntarily declare its desire to leave and this must be acknowledged and agreed by those remaining – an existential formal constraint that none of its member-states or any previously existing federal polity has ever accepted.[2] As BREXIT has demonstrated, this right is not merely symbolic. The complications arise only when the defecting member-state wishes to retain some of the advantages that it previously enjoyed as a member. Whether the painful example of BREXIT with its protracted controversy and still mutually unsatisfactory outcome will be sufficient to deter any member-state from defecting from the EU in the future remains to be seen.
The core weakness of a consortio is precisely what makes a stato such a distinctive type of polity, namely, the absence of “the legitimate use of organized violence within a given territory” (Max Weber). To put it bluntly, the EU cannot “send in the troops” when its directives and regulations – even its foundational principles – are ignored or distorted … and it is highly unlikely that it will acquire this capacity in the foreseeable future. The troops will remain where they are, in their separate barracks under the exclusive command of national politicians.
Which does not mean that the EU is deprived of less drastic and more informal powers in order to ensure compliance. It can “sham and blame” egregious offenders publicly; it can socialize those who participate in its decision-making to trust each other and come to value conformity over their opposing national preferences; it can even form something approximating “a European political class” from those professionals who repeatedly hold office in its multi-layered set of institutions and be capable of acquiring a “right to rule” of their own.
There also exist other, more improvised, measures that have been used to monitor and respond to non-conformity. Member-states whose governments include anti-democratic parties have been denied access to EU proceedings; the European Parliament has publicly declared a specific member-state in violation of democratic principles; the Commission has several times recommended blocking the transfer of EU financial resources to those members that refuse to implement EU directives or recognize the supremacy of EU law.
All of these have been used to relatively satisfactory effect, but what is needed is an ultima ratio, a credible threat that would be sufficient to complement the opportunity afforded by exit and, thereby, transform the emerging Euro-polity into a novel form of polity, a consortio flexible, with the capacity to ensure compliance with its principles and practices – short of “calling in the troops.”
What the EU should now contemplate is the inverse to the right to exit, namely, the obligation to expel. All potential entering members are required to fulfil a number of principles (the so-called Copenhagen Criterion) and go through a lengthy process of demonstrating, not just their willingness, but also their capacity to implement these principles. Unfortunately, there presently exists no prescribed mechanism for eventually expelling members – old or new – that do not comply with their initial and/or subsequent commitments.
Needless to say, the decision rule for enforcing such an expulsion should be clearly defined in advance. The accused member should not be allowed to vote on the issue, but it should be given an ample opportunity to explain and exonerate itself. What, then, should be the subsequent rule: unanimity among the remaining members or, as I would suggest, the “compound majorities” rule that I advocated in EP No. 5? The latter would make eventual action more credible and protect against the domination of either the larger member-states or an alliance among the growing number of smaller member-states; the former would seem to conform to the existing norm for such a consequential decision.
Whether acquiring such an “obligation to expel” would require a revision of the EU’s constitution, as did the “right to exit,” remains to be seen … but even a serious discussion about including it could have a pre-emptive effect. A potentially accused member-state might well prefer to choose “voluntary” exit rather than go through the embarrassment of a full proceeding – regardless of what the eventual rule might be.
Philippe Schmitter
Emeritus Professor
European University Institute
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[1] As distinguished from my previous label for it: condominio which may have been a regime, but not a polity.
[2] Although as a practical matter, existing nation-states have (very rarely) tolerated the unilateral exit of one of their component units. Slovakia succeeded in “velvetly” divorcing itself from Czechoslovakia. Referendums were held (unsuccessfully) in Quebec to secede from Canada, Catalyuna from Spain and Scotland from the United Kingdom. The breakup of the former Soviet Union hardly counts given the exceptional conjuncture of the moment.