The EU needs a new constitution
The bicycle is perhaps the European invention that more people in the European Union use to get around these days than any other. All you need is a couple of wheels, a set of handle bars and off you go. The bicycle is a stroke of kinetic genius, transforming human power into locomotion without harming the environment. Walter Hallstein, the first president of the European Commission, once said that the European Union is a bit like a bicycle: When it keeps moving, things are fine, but if the bike isn't used, it falls over, lies in the weeds and begins to rust. After a time, a truck comes by and takes it to the dump.
Something like that could happen to the European Union. The political idea behind the EU, which was awarded the Nobel Peace Prize just six years ago, is not in good shape these days. Italy is prohibiting rescue ships loaded with hundreds of people in need from docking at secure European ports. Denmark is seeking to further seal itself off. Hungary has openly said it plans to ignore rulings from the European Court of Justice on asylum issues. Poland is reforming its judiciary in ways that pose severe threats to the rule of law. And in Germany the government is in danger of collapsing over the asylum question and the EU's approach to it. Five member states, two issues: helplessness in the face of the challenges posed by migration and a lack of direction for the EU's future.
Some elements of EU law, the foundation upon which the bloc was built, are being completely ignored. There are likewise problems with the current generation of politicians in Europe. They are proving unable to push the EU idea forward and fill it with vitality. Many of the current EU heads of state and government, many of the leaders of EU institutions, are like sparrows sitting on the gravestones of great European figures like François Mitterrand or Helmut Kohl. Small birds who may have noticed the approaching calamity, but who seem too weak to prevent it.
In early 2017, French President Emmanuel Macron, an exception in many respects, dared to articulate the horrific, but no longer improbable, scenario: The failure of the EU. Following the global financial crisis, which led to the euro crisis, a political dynamic developed in 2015 that could end in disaster. When several hundred thousand people sought to flee their war-torn countries for Europe that year, the EU was overwhelmed. The British vote of 51.89 percent in favor of Brexit didn't make it any easier for the EU to hold steady. Indeed, at least since Britain's rejection of the EU, the bloc has found itself in a phase of disorientation. The bicycle is still moving, but it can no longer accelerate. And as it slows, it has begun to tip to the right. The European Union finds itself at a crossroads, one that is focused on a single question: What should the EU do about the refugee issue?
Essentially, there are two possible outcomes: Either the refugee crisis will lead to the renationalization of the countries of Europe – an eventuality that will result in the reestablishment of permanent borders and the literal disintegration of the bloc. Or Schengen will once again shine as the defining symbol of the freedom enjoyed by all EU citizens and European integration will continue. Either. Or. For years, this decision has been deferred. But now, it has become unavoidable.
Should the EU decide to follow the trail currently being blazed by European nationalists, it will mark the beginning of the end of the Europe we have come to know. That is one possibility, but it is far from inevitable. There is a way to stop the trend of renationalization. It involves continuing the process of European integration with more courage and determination than has been shown in the past decade. The EU, as the sum total of its member states, must grow together more tightly so as to effectively address joint challenges. What, then, must be done?
A European conversation
We have to reimagine the European Union and provide it with a new legal foundation. The EU must be given a new legal and emotional status. For that to happen, however, there must be an impulse for renewal, one that resuscitates the idea of community and goes beyond purely economic development.
1. A Deeper Discussion with the Citizens of Europe
This new EU idea can only be developed within the European public: Solutions that benefit everybody can only be found in discussions with everybody. We should not get bogged down in debates over construction plans in two Bulgarian villages, but should instead launch a European conversation over global and European challenges. That, in turn, means that we need more European media outlets and real pan-European political parties. Why? Because regional parties like the Christian Social Union in Bavaria or Lega in Italy are by their very nature focused on geographically defined constituencies rather than on broad issues that affect us all. That is not the way to address problems that extend far beyond national or even European borders.
2. The European Parliament as a Legislative Body
The European Parliament is the only directly elected institution in the European Union that plays a role in the creation of laws. The representatives voted into the European Parliament make up the most important venue of debate in the European democracy. But the European Parliament still doesn't enjoy the power that should result from the role it plays. In a new, functional Europe, it must be a fully entitled lawmaking body with the right to introduce legislation of its own.
When it comes to problems that must be solved on an international level, the European Parliament should wield more influence than the German Bundestag or the French National Assembly. National and regional parliaments within the European Union would remain responsible for political issues that affect citizens inside of national borders. Take the example of asylum policy. Since 1997, the Europewide Dublin Regulation has been in effect. But because representatives of EU member states in the European Council have been unable to agree on changes to the regulation, the EU has been paralyzed on the issue for years. A new Dublin IV regulation, prepared by experts and passed by a European Parliament outfitted with more lawmaking powers, would solve this problem.
As a result, individual member states would have more bandwidth to focus on important regional issues. Along with fewer competencies comes more creative energy to spend at home. The original European principle of subsidiarity remains sensible. For the survival of the EU, it is essential that it now be applied.
3. A New Ban on Interference Between the EU and Member States
Since 2009, there has no longer been an EU regulation pertaining to the straightness of cucumbers. But on important trade and environmental issues, the EU still regulates many aspects of the lives of its citizens. In an EU member state like Germany these days, some 30 to 40 percent of all laws are influenced by the European Union. But how many of the 500 million people living in the EU actually know when Brussels is responsible for their laws and when their own national lawmakers have the accountability?
The intertwining of national and European law has simply become too complicated. As a result, the distribution of competencies between the EU and its member states must be made clearer. The European Union must receive more exclusive legislative rights to put an end to the jumble of responsibilities between the EU and its member states. The EU is especially lacking important competencies when it comes to the policy areas of migration, finance, social welfare and defense. Member states have retained their responsibility for those issues, but that has meant a delay in the search for solutions to international problems. The most salient example here is the area of foreign policy: If the Office of the High Representative of the Union for Foreign Affairs and Security Policy is ever to become anything more than a cumbersome title, EU foreign policy must be changed from the principle of unanimity to the principle of majority. Only then will it cease to be possible for a single country to block the foreign policy of the entire bloc.
A new, more coherent distribution of competencies also means, on the other hand, that the EU must stay out of issues that remain the responsibility of individual member states. As such, a new ban on interfering must be established to make it more obvious where EU law ends and national law begins. It is a bit like street traffic: When some people don't know where pedestrians are allowed to walk and where cyclists are allowed to ride, conflicts are inevitable.
4. Enforceability of the New Legal Order
Legal competencies are meaningless if they aren't implemented in reality. Laws lose their validity when there are no consequences for breaking them, and the institutions that pass them lose their credibility. Let's go back to migration policy: EU countries have sought for more than two decades to solve the challenges of flight and migration together. During that period, the EU treaties have been amended three times: In 1997, with the Treaty of Amsterdam; in 2001, with the Treaty of Nice; and 2007, with the Treaty of Lisbon. Each change has been accompanied by a dispute over the competencies of the European institutions. And each time, those institutions have been given a bit more responsibility. But those competencies transferred to the EU must also be implemented, and for that to happen, the EU needs more personnel. Officials securing the external EU border, for example, must be coordinated at the EU level.
A New, EU-Wide Referendum
Furthermore, countries that violate EU law should receive punishments that go beyond a slap on the wrist. And those punishments, in contrast to the current situation, should be meted out solely by the European Court of Justice and not by the European Council. The EU is a community based on the rule of law, and that's how it should work. In concrete terms, this means that the suspension of membership rights of those member states that violate EU law can no longer exist exclusively in theory. It is essential that the union finally learn to flex its muscles. No one in Europe is currently being forced to adhere to the values laid out in the EU Charter of Fundamental Rights. And those who disregard this community of values can leave it. Because unlike the Soviet Union, the EU has never sought to force countries to join or remain.
5. A New Convention for an EU-Wide Referendum
Yes, these reforms will deprive member states of some competencies, but they will also provide them with greater room for maneuver. In the future, only EU institutions will be able to adequately control the EU's entire external border in a humane and secure manner. Only EU institutions – on the strength of a new European immigration and asylum law – will be able to coordinate migration and distribute refugees within the bloc. Only EU institutions are in a position to conduct trade relations on equal footing with China, the United States and India. And it's only at the European level that the lack of equal opportunity within Europe for EU citizens can be gradually reduced. All member states would benefit if those efforts were successful.
Achieving the items listed here will not be easy. But there is support from many European citizens. More than two-thirds of all EU citizens and 75 percent of Germans currently believe their country benefits from the EU. That's the highest level of support seen in more than 35 years. Pulse of Europe, the citizens' movement that has been holding demonstrations across Europe for the further development of the EU since 2017, along with the first pan-European political parties, VOLT Europe and DIEM25, which intend to run in the coming European elections, are illustrative of the already existing social support for a new path of European integration.
A stronger EU requires greater democratic legitimacy. That's why a new, pan-European convention with strong citizen participation is needed – precisely as envisioned back in 1992 in the Treaty of Maastricht. The final provisions of the Treaty of Maastrich explicitly called for a conference to focus on treaty reform. And Article 48 of the current EU treaty also clearly lays out provisions for a new EU convention. All that is needed is the courage of European politicians to go down that road.
EU conventions have been called in the past to write the EU Charter of Fundamental Rights and to draft a European constitution. In close cooperation with the people, a new convention could mark a turning point, even before the upcoming European Parliament elections. Conducted in concert with a pan-European referendum on the future of the EU, these steps could provide a much-needed democratic infusion. In the period of global uncertainty we are currently experiencing, the EU could empower itself anew by doing so.