Forward or Back: The Future of European Integration and the Impossibility of the Status Quo

• Author: Ronan McCrea
• Published date: 01 March 2017
• Date: 01 March 2017
• DOI: http://doi.org/10.1111/eulj.12207

Forward or Back: The Future of European

Integration and the Impossibility of the

Status Quo

Ronan McCrea*

Abstract: This article considers how the legal and political order of the EU can cope if the

‘Ever CloserUnion’envisaged by the Treatiesceases to be inevitable. In particular,it focuses

on what are the likely consequences if previously successful integration mechanisms such as

integration through law (including adventurous pro-integration interpretation by the Court

of Justice of theEuropean Union (CJEU)) and functionalintegration can no longersuccess-

fully push forwardthe integration process. It considers whether it ispossible for the Union to

‘stand still’,that is, to maintain the currentlevel of integration withouteither moving forward

to more intensive integration or engaging in costlyand disruptive disintegration. In order to

substantiate this claim, the article looks at three areas, the law of citizenship, the Eurozone

and the legislative structures of the Union, showing in each case that the neither the current

degree of integration nor methods used in recent times to move the integration process for-

ward provide a long term basis for policy.

Introduction

The topicalexample of the UK aside, there appearsto be little political willin EU states to

leave the Union orto reverse the process of Europeanintegration. At the same time, there

is also a lack ofpolitical will for intensive furtherintegration. Could keepingthings as they

are be a possible solution for theEU? This article suggests that it could not. There is very

limited politicalappetite for significant further transfers of political andeconomic powers

to the EU. At the same time, there is equally limite d support for reversing Eur opean

integration, for example, by leaving the euro or abolishin g free movement rights. This

desire to maintain the status quo would not be a problem if maintaining current levels

of integration were fea sible. However, this art icle argues that this is n ot the case. The

EU operates on the basis that its current legal and institutional arrangements aretempo-

rary and will be replaced by more integrated versions in the future. Because the current

set-up is not designed to be permanent, current structures and levels of integration will

tend to produce policy incoherence

1

and unsustainable inflexibility if maintained largely

as they are. The Union may therefore struggle to cope if, as some Member States desire,

* Faculty of Laws, UniversityCollege London. I would like to thankPiet Eeckhout, Loic Azoulai,Martijn van

den Brink the participants in the Eu ropean University's "Current I ssues in EU Law seminar" and two

anonymousreviewers for their comments.

1

For the purposesof this article I define ‘policy incoherence’as a situation where differentEU rules or a combi-

nationof EU and national rules,operate at cross purposes,undermining theability of each to achievethe goals

intendedor where the rules and structures broughtabout by the degree of integration achievedto date produce

otherwiseavoidable negative outcomesfor the Union and its Member States.

European LawJournal, Vol. 23, No. 1-2, August 2017,pp. 66–93.

© 2017 John Wiley & Sons Ltd.

it is decided to maintain current levels of integration indefinitely rather than moving pro-

gressively towards ever closer union.

The term ‘integration’has a range of meanings and the Union over the course of its

history has adopted various methods of integration fro m outright legal harmonisation

and extinguishingof the individual competence of Member States in an area, to informal

cooperation andcoordination mechanisms. For the purposes of this article,I use the term

‘integration’or‘more integration’as referring to a process through which more authority

is granted to EU institutions either in the form of the transfer of competence over new

areas of policy or by adapt ation of decision-maki ng rules so that the means by which

decisions in relation to s uch policy areas are made bec omes more supranational with

increased capability for Union bodies to makeor adapt law and policy without the agree-

ment of all Member States.Central cases of this kind of integration would be instances of

the extension of Union c ompetence to new areas (f or example by establish ing and

conferringpowers over monetary policy on the EuropeanCentral Bank (ECB)), the adap-

tation of voting rules so that the Union could pass laws on a matter with a qualified ma-

jority in the Council rather than by unanimity (as occurred in a wide range of areas in

the Lisbon Treaty) or the extension of the rights conferred on individuals or bodies by

EU law (as occurred with the passage of legislation expanding the right of EU citizens

in the Citizenship Directive

2

or through Court rulings such as Cassis de Dijon,

3

which ex-

panded the right of businesses to benefit from mutual recognition of regulatory decisions

by Member States). It could also cover conferral of a coordinating or reviewing role for

EU institutions where none had previouslyexisted though this form is categorised as ‘less

intense’than other forms.

In order to substantiate its claim, thearticle looks at three areas, the law ofcitizenship,

the Eurozone and the legislative structures of the Union, showing in each case that the

current degreeof integration cannot provide a long-termbasis for policy. The first section

sets out a brief historyof integration and the role of the law and EU judiciaryin promoting

it. It provides some reasonswhy previously successful integrationmethods may not be as

successful as before in the future. Section two looks at the recent rulings of the Court of

Justice on citizenship rights and social welfare entitlements in cas es such as Dano

4

and

Aliamovic

5

to demonstratethe problems that resultwhen the court feels unable to continue

to develop a concept such as Union citizenship in a way that continues the expansion of

the rights held by EU citizen s. This section shows how key legal concepts such as EU

citizenship and the rights that attach to them have been designed on the basis that they

would progressively develop in a more integrationist direction (i.e. they would come to

encompass more and more ri ghts over time). This mean s that attempting to maint ain

existing EU citizenship rights as they are (rather than continually developing them in an

integrationist direct ion) produces severe conf usion and incoherence in po licy. Section

three shows how the problems highlighted in Dano are not restricted to citizenship issues

but are reflective of wider problems faced by the Union, most notably in relation to the

design of theEurozone and the structure of the Union’slaw-making structuresthemselves,

which is dealt with in section four.

2

Directive2004/38/EC of theEuropean Parliamentand of the Council of 29 April2004 on the rights of citizens

of theUnion and their familymembers to move andreside freely withinthe territory ofthe Member States OJL

229, 29.6.200 4, 35–48.

3

Case C-120/78,ReweZentral AG, ECLI:EU:C:1979:42.

4

Case C-333/13,Dano, ECLI:EU:C:2014:2358.

5

Case C-76/14,Alimanovic, ECLI:EU:C:2015:597.

European Law Journal Volume 23

©2017JohnWiley&SonsLtd. 67