In the previous few posts, we have pursued a series of arguments that showed the tight connection between European politics and output legitimacy. There is no unified European public that could constitute a basis for input legitimacy; and supranational European institutions like the ECJ have positioned themselves over and above the kind of control mechanism that we are familiar with in the context of national politics. Creating output legitimacy is thus the only available route. In the past, when integration was not yet seen as a political process, there was no potential for political problems to make themselves felt. As we have seen, this was associated with both the moral-political dignity of the project of European integration itself and the status of the European community as a community of winners, mostly in an economic sense. Ironically, it was mostly because of European integration and its consequences that the permissive consensus that initially surrounded the project became politicized and turned into what is today called a constraining dissensus.
But we are not yet in a position to oversee the present situation in its entirety. The further argument, at which we hinted last time, starts out from the idea that the legitimacy of European politics is not dependent on the input of a European or national public, but rather on its effectiveness in attaining agreed-upon goals. This means that European politics risks its legitimacy when it tries to resolve controversial questions (Scharpf 1999, 30). In turn, this has consequences for ‘Europe’s’ capacity to address particular kinds of problems. It has to steer clear of controversy and avoid political opposition. It can do so via two routes: either by remaining under the threshold of political perceptibility or by limiting itself on conflict-minimizing solutions. Both routes give additional impetus to the importance of juridical decisions relative to political ones, since juridical decisions only affect the case at hand – at least for the time being. However, because of the supremacy of European law and the doctrine of direct effect, to which we will return in a later post, the jurisprudential effect of individual ECJ-decisions is of a general nature and in that sense wide in scope and far-reaching in its consequences (ibid, 31; Burley/Mattli 1993; Alter 1996). The politically almost invisible power of the ECJ perhaps also explains the high degree to which European politics, in comparison to national politics, is result of judicial Rechtsfortbildung (Weiler 1982). Fritz Scharpf claims that this near-invisibility “has so far primarily been used to expand the prohibitions stemming from negative integration against measures of national politics that could hinder free trade” (Scharpf 1999, 31; 53).
The distinction between positive and negative integration is original with Jan Tinbergen (1965) and refers to two ways in which integration can be accomplished: respectively, the (positive) establishment of new, common rules and procedures and the (negative) removal of pre-established, particular rules and procedures. Because of the institutional pressures we have described thus far, there is a fundamental asymmetry between positive and negative integration in European politics. This results in a one-sided tendency to pursue negative integration, which has important consequences.
Approached from the perspective of positive integration, European politics is a near impossibility because of the complexity of institutional actors involved. The capacities of political actors are undermined by extremely high consensus barriers: a legislative act of positive integration requires the unanimous consent of the European Council as well as the consent of the Council of the EU and the European Parliament (Michelsen & Walter 2013, 335-336; cf. Scharpf 1999, 31; 53). Instigating political action is thus practically unfeasible. On the other hand, the ‘merely reactive’ ECJ can take direct action against any national regulation that potentially affect ‘competitiveness’ or are in violation of the Treaties (Michelsen & Walter, 335-336). Historically, ECJ verdicts have often had a normative [normsetzende] function which was made possible by, and has in turn strengthened, Europe’s lasting commitment to the priority of community law over national law [fest- und fortgeschrieben] (ibid, 335).
The pressure to integrate, seeking the point of least resistance, thus naturally exercised itself on the ECJ, while there was no counterbalancing possibility to achieve integration through positive means. Recall that negative integration is concerned with the abolition of national regulation, working against perceived treaty violations and in favour of economic competition. The absence of feasible alternative routes to integration has meant that “interventionist politics and the interests they serve” are systematically put at a disadvantage (Scharpf 1999, 52). This asymmetry in feasibility is due to the underlying institutional asymmetry between supranational European justice and intergovernmental European politics (Weiler 1982). Taken together, we can conclude that the institutional-processual elements of European politics have a clear tendency to favour liberalization.
It should now be clear that European integration is not a neutral phenomenon, but pushes us in a certain political direction. In a sense, this political element is present in the very foundation of the EU, so that its practice is a faithful reflection of its political mandates. In that spirit, Scharpf mentions the disparity in the kind of language used in the Treaties to describe negative integration: it is described in much clearer terms compared to its positive counterpart and is subject to fewer exceptions (ibid, 52-54). However, this disparity appears to reflect rather than explain the dynamics we have described in the last few posts. One important factor that we have so far described on a surface level is the role of European law and the ECJ, in particular the ‘supremacy’ of EU law: that will be the subject of the next posts.
From our surface description, we have been able to see the ‘underhanded’ way in which the ECJ is able to push through negative integration from a position that is above and beyond the level of national politics. This minimizes the political risk and opposition that has to be confronted by the EU at large, precisely because of the unique position of the ECJ (both with respect to its being removed from democratic publics and with respect to its extensive practical capacities). The evasion of political risk and opposition by conducting politics through ‘non-political’ means (Scharpf 2009) allows the EU to safeguard its sole basis of legitimacy, namely the output legitimacy that is secured by addressing (only) agreed-upon community problems. It is forced into this position by its inability to rely on other channels of legitimacy; roughly put, because of the lack of a European public sphere that would be able to generate a community that remembers, experiences and communicates at the European level (Kielmansegg 2013).
Once we accept these constraining conditions on the contents of European politics, there are two abstract choices: strive for European integration only insofar as this process can be supported by means of input legitimacy (for instance, by democratic means), or put all of Europe’s cards on the route of output legitimacy; and, as we have seen, this must result in the prevalence of ‘non-political’ supranational institutions like the ECJ and a one-sided tendency towards negative integration. We find ourselves in a regional state that has clearly made the second choice. Integration is better than leaving the countries of Europe to their own devices. But why? We will have to delve into what Giandomenico Majone has called ‘fait accompli politics’ as the foundation of the initial permissive consensus with which Europe was regarded. ‘More Europe’ was and is often still seen as a political necessity; an idea that is increasingly the topic of politicized debate. But in order to understand that debate fully, we have to go more deeply into the relationship between EU law and national laws and politics.