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

Published date01 March 2017
Date01 March 2017
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 CloserUnionenvisaged 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.
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 signicant 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
and unsustainable inexibility 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.
For the purposesof this article I dene policy incoherenceas 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. 6693.
© 2017 John Wiley & Sons Ltd.
it is decided to maintain current levels of integration indenitely rather than moving pro-
gressively towards ever closer union.
The term integrationhas 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
integrationormore integrationas 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 qualied 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
or through Court rulings such as Cassis de Dijon,
which ex-
panded the right of businesses to benet 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
intensethan 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 rst 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
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 reective of wider problems faced by the Union, most notably in relation to the
design of theEurozone and the structure of the Unionslaw-making structuresthemselves,
which is dealt with in section four.
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, 3548.
Case C-120/78,ReweZentral AG, ECLI:EU:C:1979:42.
Case C-333/13,Dano, ECLI:EU:C:2014:2358.
Case C-76/14,Alimanovic, ECLI:EU:C:2015:597.
European Law Journal Volume 23
©2017JohnWiley&SonsLtd. 67

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