Revue Européenne du Droit
Can the renewed debate on European power lead to a paradigm shift in Brussels ?
Issue #3
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Issue #3

Authors

Gilles Briatta

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

For a long time, the construction of Europe has been seen by French public officials as a construction of power. The European Union (EU) could in no way remain a mainly economic and financial organization without a government worthy of the name, or without the usual attributes of international power, including military capabilities and foreign policy.

The creation of the single currency was thus considered by France as a fundamental and politically indispensable step, which was to foreshadow the rest; while the development of a common foreign policy, the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy, the function of permanent President of the European Council, the multiple attempts to launch a common industrial policy centered on strategic sectors in terms of influence, the groundwork of a common defense policy, all of this could be considered by French officials as parts of a long-term plan aimed at building, step by step, a European power.

However, this French evidence has never been unanimously accepted in Europe, and for a long time it has even remained a minority opinion, for several reasons. 

These reluctances are first and foremost part of the historical heritage of Europe. The concept of European power can bring back bad memories for many Europeans. One can cite the recurrent fear of the domination of a few “big” States (France and Germany in particular) over all the others, a theme that is still very present in daily European relations, or the suspicion of a more or less confused “Gaullist” desire for a France dominating Europe, a caricature that is still very much alive in the minds of certain of France’s partners, or the more general fear of the more or less distant reconstitution of a “European empire,” a term that remains an absolute taboo in Europe, especially – but not only – in the East.

They also result from certain French inconsistencies: the decades of European construction have not always been a coherent path for the French policy on Europe. Our partners readily accuse France of forgetting its objective of European power as soon as it suits it, particularly in foreign policy or arms policy, in order to focus on its own interests and prestige in the world, including vis-à-vis the United States or Russia. It is also emphasized that the French promotion of a strong Europe is far from being unanimous in France itself, where a strong Euroscepticism is developing, including in the national political class. France is certainly no worse than its partners in these two areas, but the contrast with the announced objective can sometimes be confusing.

There are also important cultural differences in Europe concerning the notion of power: in this debate, France has always favored the traditional (and indeed indisputable) instruments of international power: common government worthy of the name, common economic and industrial policy associated with a single market for goods and services, European military capabilities, European diplomacy, the international role of the euro… It has tended to invest less in the international influence of economic, environmental and technical regulations, a means of intervention that is very well suited to the European Union, and above all to underestimate everything that revolves around legal power, whereas the EU has rapidly enshrined respect for European law as the supreme norm of its functioning, the law having been for centuries a international weapon commonly used to assert one’s power. 

It may be noted that the creation of a single European capital market has not historically been a priority objective of French policy on Europe either, not being included in the French cultural vision of power, whereas France had long been able to see the spectacular effects of American financial power (the role of the dollar and the depth of the American capital market being closely intertwined) and should not have forgotten the role that British finance played in the assertion of the United Kingdom’s world power throughout the 19th century. It is ironic that it was a British European Commissioner who finally decided to put the Capital Markets Union on top of the Brussels agenda…

Finally, the real and symbolic place of the United States in Europe has changed: for decades, the assertion that European power should aim in particular to free itself from American influence in Europe provoked – for obvious historical reasons – an outcry from many of France’s partners. The theme is still very present and very sensitive, especially around everything that concerns the role of NATO (above all in a period of tension with Russia), but it has been evolving rapidly for several years, since it is above all on the American side that Europe is less and less perceived as a priority interest, thus forcing all Europeans to rethink – often against their will – the transatlantic relationship.

These changes in the United States’ vision of its relations with Europe are one of the reasons for the revival of the debate on European power in Brussels. Indeed, several factors have combined to renew interest in this old French idea. 

First of all, we are witnessing a geopolitical transformation: faced with the United States’ growing disinterest in Europe, but also with the sudden withdrawal of American troops from Afghanistan and the extension of Sino-American rivalry to the entire world, Europe feels more isolated and marginalized. The prolonged impotence of traditional multilateral bodies, such as the World Trade Organization, challenges the basis of consensus on external relations within the EU. It is difficult not to mention the feeling of European economic decline, with the consequences of the overwhelming domination of the GAFA and other American platforms in the digital sector, the European delay in other sectors of the future (such as solar energy against China), the growing position of large private American financial institutions in Europe, the new fragility of a German export system that has relied heavily on China, and the American progressive domination of Internet satellites. The health crisis, where we have become aware of the limits of outsourcing the health industry, and the difficult management of the Brexit, which has forced Europeans to urgently define the best means of defending their common interests, are undoubtedly the last two triggers.

The renewal of this debate on European power in Brussels is evident: the Commission is thus launching numerous communications and legislative initiatives in areas as diverse as digital, electronics, industrial policy, trade policy, financial services, the international role of the euro, protection against non-European extraterritorial legislation… aimed at promoting open strategic autonomy, a term that is more consensual in Europe than that of “power” but which clearly goes in the same direction. There is no longer any taboo in Europe on the need to discuss strategic autonomy.

However, this movement can only lead to a real paradigm shift if certain fundamental conditions are met:

1. This strategic autonomy must be perceived as compatible with the interests of the greatest number of member States and European citizens: the debate on European power has long been polluted by the fear it could lead to the domination of certain “big” States over the whole of the EU. It is essential, from the outset, to guarantee that the interests of the greatest number of people will be taken into account and to convince them that this project does not serve the interests of one or two member States but a collective interest. To fail on this point would be to condemn the whole initiative in advance.

2. The objective of strategic autonomy must be supported by publicly stated examples of concrete benefits expected in the future: nothing is worse than a European policy that cannot explain concretely the goals pursued. For example, it needs to be explained more clearly why we cannot let American digital platforms continue to dominate the market to such an extent, and what is the reasonable long-term objective for Europe in this area, or why we cannot remain passive in the face of the development of extraterritorial legislation in the world (in the United States, but also in China and elsewhere). Behind the communications and legislative proposals there is still sometimes a certain confusion about the real objectives sought. 

The example of the capital markets union is enlightening in this respect: it is certainly an official objective of the Union, but few European officials seem convinced of the link between this objective and very concrete problems: very abundant European savings but massively exported, especially to the United States, a shareholding of large listed European companies increasingly dominated by non-European funds, an endemic weakness of venture capital in Europe, etc… Connecting objectives with concrete problems to be solved is vital for the coherence of the action and for its political support.

3. Strategic autonomy will only be an illusion if it is not compatible with the other major objectives of the European Union: this is of course obvious for the energy transition, a major objective of the current legislature in the EU. These objectives are likely to reinforce each other, but this is not at all a foregone conclusion and will require fine coordination in the medium and long term between many services of the European Commission, which is not always the hallmark of this great institution.

4. One of the greatest potential obstacles to European power is its internal division. I will not go back to the fear of domination by the “big” States over the others. Alongside this recurring fear, there are other divisions in Europe that threaten the very existence of the EU: the North-South divide, which was brought to light during the great financial crisis of 2008 and especially 2011, and which has left deep marks on public opinion, and which must continue to be addressed. And, of course, there is also a growing East-West divide, which is very dangerous because it is based on sometimes different perceptions of history and values, and which will not be resolved simply by appealing to the European courts. 

Finally, there is a social divide, which runs throughout the member States themselves. This social divide was one of the documented causes of the success of Brexit in the United Kingdom and is all the more threatening as the profound changes linked to the energy transition are likely to increase the scale of this divide in Europe. Allowing these fractures to deepen would be a surefire recipe for threatening the very existence of the EU and forever abandoning any dream of European power.

5. To build its strategic autonomy, the EU must rely on its strengths, but also draw lessons from past decades. 

Building on its strengths means first of all continuing to defend the rule of law and the primacy of European law, the cornerstone of European construction, especially at a time when this primacy is increasingly being questioned in European public debates. But it would be very dangerous to imagine we could solve the deep internal divergences within the EU, and particularly the East-West divide that we have just mentioned, solely through legal action and without wanting to debate the political substance of the disagreements. Such an exclusively “jurisdictional” treatment of substantive problems, an ever-present temptation in the EU, would certainly lead to failure. 

Relying on its strengths also means continuing to regulate, which the EU is doing on a massive scale, particularly in the fight against climate change. But here again, we must not imagine that we can solve everything through regulation: in Europe there is a tendency to regulate a priori, including by promoting technological choices that the market has not always had time to validate. To build its strategic autonomy, the EU should look a little more closely at the methods used outside the EU and do more to direct market forces without systematically wanting to predetermine everything in detail. This is particularly important for the success of the energy transition, a vital environmental objective, but also for strategic economic autonomy, as well as for the future of the European social divide.

6. Finally, there will be no success for the various initiatives underway to assert European power without the development of appropriate common tools. 

We know that the EU is a strange political animal, an international organization with enormous powers (common trade policy, very broad internal regulatory powers, a common currency and a single banking supervisor for the euro zone, primacy of European law over national laws, etc.) without having the other usual tools of power: no common government worthy of the name, no common police force, no common military, and of course no common ideology that can serve as a basis of identity for peoples who do not speak the same language and who often have strong differences in culture and perception of their history. 

This strange political animal cannot succeed in achieving its objectives without giving itself the appropriate tools, particularly in terms of execution or control. We would not have had a common commercial policy or a competition policy without the constitution of a strong and competent European Commission. When it became necessary to fight against international terrorism after September 11, 2001, we could only progress by inventing the very audacious legal construction of the European arrest warrant. And we could not unify the conditions of prudential supervision of banks without a single banking supervisor for the euro zone, created by regulation in 2013, after several years of financial crisis.

When we analyze the main objectives of European strategic autonomy, we quickly see that we will need new adapted tools. It is difficult to be serious about influencing third countries that are developing their extraterritorial legislation without developing greater European criminal jurisdiction (in OFAC litigation involving large European companies on suspicion of violating American embargoes, it is almost always the federal prosecutors of the US Department of Justice who have had the major influence on the litigation), nor without the creation of a European OFAC for the non-criminal aspect. It is hardly conceivable to move towards a true capital markets union without a true European regulatory authority for financial markets. And the tools needed in Europe are not all public; on the contrary, the most essential ones are probably private: it is thus necessary to accelerate the establishment of conditions to foster the emergence of European digital platforms capable of competing with their American partners, as well as European investment funds and European financing and investment banks of sufficient size, without which a capital markets union would make no sense for Europe and its financial autonomy.

***

If these different conditions for success are properly analyzed and addressed, the renewal of the debate on European power can become a paradigm shift for the EU. A taboo has been broken, mainly by a combination of circumstances external to Europe. Now the hardest part begins for European strategic autonomy. To succeed, the EU must remain true to what has always made it successful, in particular its formidable legal power and its ability to make laws and regulations, but it must also constantly reinvent itself to avoid falling into well identified traps, traps as considerable as the opportunity that lies ahead of us.

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Gilles Briatta, Can the renewed debate on European power lead to a paradigm shift in Brussels ?, Dec 2021,

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