Statehood in the European Union

This article has been in an eternal “draft” state since, well, forever- at least few months.

Actually, the title has been on my whiteboard for at least one week.

Why the wait? Because I live in Brussels, and I wanted to wait the results of the negotiations.

I already wrote that, when called again to be a negotiator on something where I had already negotiated a prior agreement, I declined the invitation: my position is that if the same negotiators sit at the table for too long, eventually they become part of the issue, not of its solution.

I saw too many cases when, once a negotiation did not proceed, to avoid a loss of face, the negotiators used a brinkmanship approach, to force the other side to become responsible for the failure- and, in some cases, the negotiation was just to buy time.

But I was involved only on business or business-related negotiations: a political negotiation is by definition a matter of “face” (or “mianzi”).

Albeit, in the country I am coming from (Italy), most negotiations, also in business, were closer to the description of face- and relationship-based negotiation (the GuanXi) than fact-based discussions: it was sometimes quite tough to help non-locals understand the difference.

Before continuing with the article, just to avoid any misunderstanding, I will re-iterate the position that I discussed often with Belgian contacts and acquaintances: from my perspective, splitting the country while already inside the EU does not make any sense, also if sometimes I witnessed some linguistic tensions.

Such as somebody from the French side who asked in 2008 (before the latest crisis) why I was studying Dutch, as he never felt the need to learn Dutch; or somebody speaking Dutch at a French event, or, as others switching to English to avoid taking sides.

Also if both sides have their own ideas on what will happen after a split, the framework that I heard most often is one based on territory, i.e. joining another country.

Neighbouring countries already have access to the assets (the market), why should they take assume the liabilities (just imagine the nightmare of “converging/converting/absorbing” the social welfare and tax systems, bureaucracy, etc)?

It is also doubtful if any of the three (or four, counting Brussels) could really be viable as an independent state, considering that no amount of money was able to prevent the relocation of industrial activities.

This preamble to explain what this short article is not about, and to introduce the next element: what is the meaning of statehood in European Union?

Permanent limitation of sovereign rights

By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which … became an integral part of the legal systems of the Member States and which their courts are bound to apply … The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.

European Court of Justice, case 6/64, quoted in “The Europeanisation of National Governance Structures in the Context of the Transformation of Statehood”, Gunnar Folke Schuppert (ed), Nomos Verlagsgeselleschaft, Baden-Baden 2006

Once in a while, some articles compare the genesis of the European Union to the path followed by the USA, while ignoring the long European history of wars and independent statehood prior the 1950s.

Yesterday’s press release from Deauville was a reminder that, while negotiations still involve all the Member States, an initiative from France and Germany, and a negotiation between the two, carries considerable weight.

And, as in the past, it has been often the “engine” to produce significant jumps ahead, both on the structural and normative level.

A consequence of the gradual integration of the legal systems is the increased overlapping between expectations and reality.

Expectations, created by political activity at the national level; and reality, created by the treaties, directives, etc.

Until recently, politics at the national level almost ignored the integration aspect, as if each Member State was still really able to choose “à la carte” which parts of the EU legal system should be applied.

Except when it was useful to say that a not-so-popular reform had been imposed by Brussels and its bureaucracy, forgetting that usually it was the end result of a negotiation between Member States.

Two old attributes of statehood were the powers to issue currency and to keep or raise a standing army: the first replaced by the Euro, the second increasingly part of a functional integration, both to reduce costs, and improve efficacy.

Is it still useful, in the European Union, to use the “volk, gebeit, gewalt” as a prism to observe statehood?

Or, as in the old quote from the ECJ reported above, we are at a point when the external cohesion is more important than the internal cohesion of the individual entities that formally still compose the EU, as, anyway, any internal subdivision is bound to comply with the same legal system (on a deeper level than in the USA), and a different form of internal cohesion is developing?

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