Revue Européenne du Droit
The Groundwork to European Power
Issue #3
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Issue #3

Authors

Pierre Sellal

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

The groundwork of European power

How can we understand Europe’s uncertain relationship with power? Is power, which Valéry Giscard d’Estaing opposed as early as 1974 to the concept of ‘space’, which was not sufficient in his eyes to account for the nature of the European project and its ambitions, doomed to remain the chimerical horizon of its ultimate goals? How are the relations of forces and powers expressed in today’s world, which is harsh, competitive and rarely spontaneously cooperative? What ‘paths’ does power now take to make itself felt, promote its interests or defend its achievements? Does the European Union have the competences to follow these paths in their diversity? Does its institutional framework provide it with the means to do so, or do these institutions hinder the kind of exercise of power that it would like to have? 

In short, for Europe, the quest for power, as well as the related assertion of sovereignty, is uncertain, forcing it to ask many questions which would benefit from a multitude of different views. This is precisely the purpose of this volume of the Revue européenne du droit.

It is well known that the European Community was not born out of a desire for power. Quite the opposite: its founders wanted to contain it and limit the risks of its re-emergence in Europe. The de facto solidarities, then the economic integration, were the levers of this ‘repression of the logic of power’. The priority given to the creation of the Common Market, then to the Single Market and the abolition of internal borders, has long limited the scope of Europe’s external action to the quest for open markets and actions taken in solidarity with the developing world, but never any geostrategic assertion. The choice of the vast majority of Member States to rely on another alliance for the purpose of their defense meant that common security couldn’t easily become an area of common European assertion.

The deliberate blurring of the external border, which has been displaced by successive enlargements, has thwarted the emergence of a collective identity. Finally, Brussels has long upheld the belief in the universal advent of liberal democracy twinned with a market economy and the ineluctable (because highly desirable) development of multilateral regulation, a natural extension of the European approach of law-based regulation. 

All of them are deliberate and partly outdated choices, and gave rise to many disillusions, the logic of cooperation finally giving way to that of power. This calls today for a real ‘paradigm shift’, all the more difficult to carry out as reality seems to undermine the very foundations of European construction.

In their diversity, the ‘paths’ investigated in this issue illustrate the various forms of power in today’s world. They are all areas of competition, confrontation or sometimes cooperation between nations and regional groups: technical standards, competition rules, legal obligations for the protection of the environment or the climate, principles related to the protection of individual rights and public freedoms. They are also the levers through which the European Union can hope to act and impose its will: the international projection of its standards, partnership agreements, instruments for the protection of the access to its internal market.

In all cases, the main question is that of determining the conditions for, and the manner in which Europe may be ‘sovereign’, ie decide for itself and in its own interest, in the areas it deems to be essential for its identity, its prosperity, its security and the well-being of its citizens. 

But, as clearly illustrated by the contributions to this issue, Europe’s ‘sovereignty’ cannot be abstract and general, if only because its very existence proceeds from the choice of the States that make it up to confer competences on it, which they determine by the common agreement of their combined sovereignties. It is important, for the credibility of the idea of a ‘sovereign Europe’ as well as for its acceptability to those who entertain a nostalgia for, or on the contrary a certain mistrust in the old federal hopes, to qualify and specify what we mean by sovereignty. It can be (and would undoubtedly receive the support of the greatest number by being thought of in this way), technological, digital, monetary, energetic, climatic, normative… 

It is more difficult to assert itself and impose its will in the areas of the movement of people (as the migration crisis of 2015 had clearly shown), protection, security and especially defense. But it would be regrettable if the confusion maintained by some or the reduction of the concept of power to sheet military force led us to completely abandon the search for power: a consensus can be reached on this concept only if it is targeted, characterized and delimited. 

Not being a political Union yet, let alone a defense Union, Europe remains a regulatory Union. The capacity to produce legal norms and to assert itself through law remains its eminent vocation. A period of restraint, or even disengagement, may have been necessary and welcome after the years of normative and harmonizing bulimia required by the completion of the internal market. But new fields are now calling for common rules and organization, from the digital economy to the industrial and societal issues related to climate policies. 

While being necessary for Europe itself, these new regulations are also an opportunity to project power through the export and dissemination of European standards abroad. Several contributions in this issue illustrate the fruitfulness of this process. But some of them also underline the growing difficulties that Europe could face in pursuing this path. I will mention three in particular.

It is naturally easier for the economically dominant power in a market to impose its standards. Europe created and imposed the GSM standard at a time when it dominated the global telecommunications industry, or at least was on a par with the United States. Without enjoying a comparable position in the world of the Internet, it was able to be a pioneer with the regulation on the protection of personal data (RGPD), conceived a little more than ten years ago, and thus ensure that its principles were widely disseminated internationally. Today, Europe is no longer the forerunner or the only one in many standardization activities, including in the digital economy, where China and Korea are also asserting themselves as standard-setters. Competition in this respect can only exacerbate as Europe’s share of the global economy erodes.

The external projection of European standards has traditionally taken two main paths: their extension via multilateral agreements on the one hand, and their inclusion in trade or partnership agreements concluded by the EU with third countries on the other. The first suffers from the erosion, discredit or ineffectiveness of the multilateral system, due to the withdrawal or reduced commitment of its main players. The second falls victim to the growing and largely irrational reluctance of national parliaments and the European Parliament to enter into new trade and free trade agreements, even though these had become, above all, effective instruments for exporting European standards. 

Making the production of standards an instrument of power implies a willingness to adapt these rules to European interests and to promote them. However, many European standardization exercises today are based on values rather than interests. It is not necessarily a question of pitting one against the other, but if we can claim to be exemplary through the values we embody and defend, we can only build power based on interests.

As a regulatory union, and above all as a legal construction, the Union has erected, after a brief period of approximation, the primacy of European law over national law as the cornerstone of its edifice. And it is not disputable that the integrity of the single market depends on the unity of interpretation and implementation of European law, including by national courts, under the supervision of a single jurisdiction, the Court of Justice of the European Union. The contributions in this issue recall the moments of tension to which has given rise the articulation between European law and national law, and the relationship between the CJEU and the Supreme Courts of the Member States. New episodes were abundant over the past years, involving both founding states (Germany and the Karlsruhe Court, the Conseil d’Etat in France) and more recent members (Hungary, Poland). As these articles rightly point out, it is important to distinguish between the various cases, particularly according to whether or not they are part of a deliberate policy of challenging the European legal order. Nevertheless, these cases justify some convergent remarks.

As necessary as it is for the very functioning of the Union, the integrity of its market and its credibility as a ‘normative power’, the primacy of European law is not self-evident in an entity that is not and does not claim to be a federal State, and within which the ‘masters of the Treaty’, according to the expression favored by the Karlsruhe Court, remain the Member States alone. The relationship of European law with the internal order of the States is especially sensitive when it affects constitutional norms, or brings into play the relations between the CJEU and the national supreme courts. This requires balance, a sense of compromise and dialogue, including between the involved judges, otherwise uncontrollable reactions will be provoked. This is particularly necessary when the interventions of the CJEU lead it to move into the field of security and defense, where the Union does not have indisputable competence, and would have much to lose by being identified above all as a power to prevent States from acting in these areas.

The concept of rule of law runs through today’s debates over the very nature of the European Union legal order, the primacy of European law and the requests made of each of the Member States. It cannot but be consubstantial with an entity founded on the respect for its laws and rules. However, its definition remains uncertain, although the concept is deemed to be one of the foundations of the Union, according to the terms of Article 2 of the Treaty on European Union. In fact, reading this article, one understands that the rule of law is one of the ‘values’ of the Union, ‘common to the Member States’, but that it is not confused with democracy or respect for human rights. Expectations in this area are therefore partly subjective, evolving according to the times and circumstances, while today they are an absolute priority.

At the same time, another concept, the principle of subsidiarity, which was introduced with the Maastricht Treaty in 1992, and which dominated the political discourse on the Union, not only among its opponents, has practically disappeared from the debate. However, political choices or national collective preferences, in the area of family law for example, which were considered only 20 years ago to be clearly within the scope of subsidiarity, tend to be understood today as essential parts of the common constitutional pact, at the cost of tensions with those Member States or political majorities that tend to diverge.

Similarly, the division, which must absolutely be established, between the independence of the judiciary, which is an essential principle of the EU legal order, and the recognition of the full competence of each State in the organization of its justice system, would benefit from being clarified by the principle of subsidiarity, which, according to the Treaty, is binding on all EU institutions, including the Court of Justice. In other words, the necessary respect for the rule of law does not preclude dialogue or nuance. 

The contributions collected in this issue seldom address the institutional framework of the Union, with the exception of the Court of Justice. And rightly so: the experience of treaty revisions, at least after the Maastricht Treaty, has shown that there is little to be gained, in terms of efficiency and readability, from reworking the institutional organization of the Union, at the cost of reforms that are increasingly difficult to negotiate and ratify, rarely necessary for the content of European policies and at best questionable in their outcome. 

However, it must be remembered that it was the aforementioned repression of the discourse of power that inspired the drafters of the Treaty of Rome in their desire to ensure an institutional balance, an equality between Member States and the rejection of any concentration of power. The resulting lack of an embodied authority, or even of an European identity, is undoubtedly one of the difficulties encountered in the emergence of a more assertive, if not more ‘sovereign’ Union. But one should be careful not to use this as a pretext for a new reform of the institutions and their reciprocal relations, since there is sometimes a great distance, in this area, between the initial ambition and the result, as illustrated by the idea, born of the Lisbon Treaty, of ‘stable presidencies’ of the European Council or the Council of Ministers. 

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Pierre Sellal, The Groundwork to European Power, Dec 2021,

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