One way of expressing the contrast between national politics and politics at the European level is via symmetry. Vivien Schmidt says of the national level that it is home to “politics without policy”, whereas the European level displays “policy without politics” (Schmidt 2006, 22-23; 157-162). This is a philosophically rich contrast, especially from the perspective of our interest in depoliticization – an interest Schmidt does not particularly share. The contrast as she perceives it revolves around the ‘agonistic’ shaping of political decisions one the one hand (politics), and the ability to exercise practical effects on the other hand (policy). On her analysis national politics offers a kind of simulation, which we have already referred to as placebo politics. In the European context, this means a lack of discourse on the lessened capacities of individual states as a direct result of EU influence – we will have more to say on this later – and an unwillingness or inability to admit to this fact. The system of party politics that remains in place is thus ‘political’ in Schmidt’s sense, but can barely result in an alteration of practice; politics without policy. On the other side of the symmetry, the EU is able to exercise practical influence, by which means it is able to constrain its member states. But this influence is not the result of the democratic legitimacy that is proper to nation states. That is hardly surprising, since the EU is a regional state; but with this democratic component the ‘agonistic’ part of the equation has likewise dropped out of the equation.

In order to explore what this means, we should start by observing that the European Treaties function in similar ways as a constitution would in nation states (Weiler 1982; Majone 2014, 151). It lays out the terms on which government is to be conducted and constrains the actions of both the member states and the EU as such. The execution of the terms that are laid down in the treaties is mostly the prerogative of the member states themselves (Kielmansegg 2013), but the decisions as to what kind of policy is to be employed ‘in the spirit of the Treaties’ takes place on a different level. To use a legal term, the Treaties are necessarily incomplete contracts: this means that the parties to the contracts cannot foresee in advance all the contingencies that could impact their contractual performance, and are unable or unwilling to oblige themselves to a particular course of action (Majone 2014, 105). “The founding fathers of the EU” responded to this essential incompleteness by delegating the task of filling in “the gaps in the Rome Treaty” to the European Court of Justice (ECJ) and the European Commission (ibid, 106). With the addition of the European Central Bank, we have a trio of central supranational EU institutions. Because of the great historical importance of the ECJ, which will become clear in what follows, I will focus on its role when describing the EU’s ‘policy without politics’.

As a first step, let us consider the ways in which decisions by the above-mentioned institutions can be corrected. Provided that such decisions are supported by the Treaties, there is only one procedure in place that could overturn such a decision externally (of course, the ECJ itself can in a sense ‘correct’ earlier verdicts: I ignore this since it does not address the political role of the ECJ as such). What is required is a change to the treaties themselves, which would require the unanimous consent of and ratification by all member states: an almost impossibly high hurdle (Scharpf 1999, 30). Because there is no majoritarian corrective in the usual sense, the formal independence of the supranational European institutions is much more secure than would be possible in any national constitution. The ECJ proved able to integrate conflict both functionally and normatively, unlocking considerable emancipatory potential, such as union-wide anti-discrimination laws. Integration of this kind was possible because a new position had been created from which to legislate, increasingly independent from national conventions and orthodoxies as the justice system stabilizes itself on a transnational level. However, this also means that the juridical system gradually becomes shut off from societal and democratic legitimacy precisely to the extent that it has become transnational (Brunkhorst 2014, 101-105; cf. Scharpf 1999, 30).

The crucial point is that no one is forced to shoulder political responsibility. European politics and output legitimacy are thus even more tightly woven together than we have considered so far. We have previously studied the fact that there is no Gemeinsamkeitsglauben (common feeling of community) in Europe as such to grant input legitimacy to European politics. But, starting from the other end of the political chain, EU institutions – we have considered the ECJ as an example – have also positioned themselves in such a way that they are removed from any democratic public, whether non-existent European public or perfectly extant national publics. This means that the legitimacy of European political decision-making is fully dependent on the effectiveness with which they achieve agreed upon goals. It follows that European politics risks its legitimacy when it tries to resolve controversial questions (Scharpf 1999, 30).

There is a further conclusion to be drawn. By its nature, European politics can process [bearbeiten] a smaller bandwidth of problems, and can only invoke a smaller selection of political options in order to solve said problems” in comparison to the nation state” (ibid). To put it even more sharply, in the words of Scharpf: the effectiveness and hence the legitimacy of European politics “depends on its ability to avoid political opposition, by either remaining under the threshold of political perceptibility or limiting itself to conflict-minimizing solutions” (ibid). Where strategies of this kind are not available because political decisions of one kind or another are unavoidable, there is no opportunity for European legitimacy to establish itself. In such cases, European politics has to rely for its legitimacy on the collaboration of national governments and their resources of legitimacy (ibid, 30; 32). One can easily see how the ‘forces’ emanating from these institutional conditions could have a decisive influence on the kinds of decisions that are taken in the European Union. We will begin to explore this influence in the next post.

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