A European State of Prolonged Emergency

If we look at the post-​2008 his­tory of European and Mem­ber States’ legis­la­tion, we can clearly per­ceive the emer­gence and con­sol­id­a­tion of a dis­course of crisis and neces­sity, which has been used to aban­don exist­ing legal con­straints and to dis­mantle the bound­ar­ies provided by the struc­ture of the EU. For­ti­fied by a nar­rat­ive of apo­ca­lypse, illeg­al­ity has been trans­formed into lawfulness.

Con­sid­er­ing the fam­ous 2009 judg­ment of the Fed­eral Con­sti­tu­tional Court (Bundes­ver­fas­sungs­gericht) in Ger­many,¹ we can affirm that accord­ing to the fun­da­mental Treaties:

‘the European Union must com­ply with demo­cratic prin­ciples as regards its nature and extent and also as regards to its own organ­isa­tional and pro­ced­ural elab­or­a­tion. This means firstly that European integ­ra­tion may not res­ult in the sys­tem of demo­cratic rule [in Mem­ber States] being under­mined. […]. European uni­fic­a­tion on the basis of a union of sov­er­eign states under the Treat­ies may not be real­ized in such a way that the Mem­ber States do not retain suf­fi­cient room for the polit­ical form­a­tion of the eco­nomic, cul­tural and social cir­cum­stances of life. This applies in par­tic­u­lar to areas which shape the cit­izens’ cir­cum­stances of life, in par­tic­u­lar the private space of their own respons­ib­il­ity and of polit­ical and social secur­ity […] the admin­is­tra­tion of crim­inal law, the civil and mil­it­ary mono­poly on the use of force, fun­da­mental fiscal decisions on rev­enue and expenditure.

Accord­ing to the Ger­man Court, and to the notion itself of integ­ra­tion as con­fer­ral, cer­tain prerog­at­ives of the Mem­ber States, i.e. the peri­pher­ies, rep­res­ent lim­its that can­not be tres­passed without viol­at­ing the essence of the European Union inten­ded as an asso­ci­ation of sov­er­eign national states. An action con­duc­ted out­side these legal fron­ti­ers should be con­sidered, there­fore, as in viol­a­tion of national iden­tity and of the EU fun­da­mental treat­ies themselves.

How­ever, it is enough to look at the events that have described the recent his­tory of Europe to dis­cover the exist­ence of pro­ced­ural dis­orders and sub­ver­sions that have gone far bey­ond the lim­its just defined, and which have sub­stant­ively deprived Mem­ber States of the autonomy, inde­pend­ence, and iden­tity, that European integ­ra­tion should have guar­an­teed. And the excep­tional legit­im­acy deriv­ing from the state of emer­gency (if it is pos­sible to talk of legit­im­acy when we are out­side of the scope of the law), has not been exer­cised exclus­ively to impose fiscal restric­tions and aus­ter­ity meas­ures to the tar­get coun­tries, but also to provide the cen­ter with the power to offer an eco­nomic reward, to impede the exer­cise of demo­cratic prerog­at­ives, and to trans­fer fur­ther powers from the peri­pher­ies to the center.

Try­ing to provide some examples, we can make ref­er­ence to the adop­tion of aus­ter­ity plans by Greece, Ire­land and Por­tugal on the basis of dir­ect­ives com­ing from the Troika (IMF, ECB and EC), but also to the insti­tu­tion­al­iz­a­tion of the European Fin­an­cial Sta­bil­ity Facil­ity (EFSF) whose cre­ation, in viol­a­tion of Art­icle 125 of the TFEU (Treaty for the Func­tion­ing of the European Union) (the so-​called no bail­out clause), is legit­im­ized on the basis of Art­icle 122 of the TFEU, which, refer­ring to “severe dif­fi­culties caused by nat­ural dis­asters or excep­tional occur­rences bey­ond its con­trol” states that “Where a Mem­ber State is in dif­fi­culties or is ser­i­ously threatened with severe dif­fi­culties caused by nat­ural dis­asters or excep­tional occur­rences bey­ond its con­trol, the Coun­cil, on a pro­posal from the Com­mis­sion, may grant, under cer­tain con­di­tions, Union fin­an­cial assist­ance to the Mem­ber State con­cerned. The Pres­id­ent of the Coun­cil shall inform the European Par­lia­ment of the decision taken.” A broad and undefined European state of emer­gency that can be filled by simple reg­u­la­tions is thus insti­tu­tion­al­ized and legit­im­ized.²

In this frame­work, Reg­u­la­tion 407/​2010, which intro­duced the spe­cific mech­an­ism of the EFSF to provide states with eco­nomic relief on the basis of the excep­tional cir­cum­stances, we claim, cre­ated an extra-​ordinem situ­ation grant­ing the European Com­mis­sion and the European Cent­ral Bank with the author­ity and legit­im­acy to require reforms and con­trol their imple­ment­a­tion. An ori­ginal viol­a­tion of the treat­ies, viz. the insti­tu­tion of a European fund for provid­ing dir­ect eco­nomic sus­tain to the Mem­ber States, has thus cre­ated the pre­requis­ites to com­mit another viol­a­tion, this time regard­ing the iden­tity and fiscal autonomy of the Mem­ber States.

Even more rep­res­ent­at­ive of the incom­pat­ib­il­ity between the situ­ation of emer­gency and the demo­cratic prerog­at­ives of the people is the case of the Greek ref­er­en­dum on the second bail­out agree­ment. Announced by former Prime Min­is­ter Papandreou on Octo­ber 31^st, the pro­posal was with­drawn only few days after­wards, on Novem­ber 3^rd, after the European lead­ers had cut off aid pay­ments to Greece and said that Greece had to decide soon whether it wanted to stay in the euro or not. The ulti­matum, which soun­ded a lot like black­mail, was not only at odds with the con­cep­tion that sov­er­eignty belongs to the people and that it is the people that are the source of polit­ical and legis­lat­ive legit­im­iz­a­tion, but also with the Maastricht Treaty, accord­ing to which the mon­et­ary union is ‘irre­voc­able’. An attempt to let the people express them­selves was imme­di­ately cur­tailed with eco­nomic and polit­ical argu­ments, in a way that clearly viol­ated the idea of bottom-​up integ­ra­tion and the lim­its that states had imposed to them­selves. The bail­out remained untouched, and illeg­al­ity trans­formed into lawfulness.

Finally, the Treaty on Sta­bil­ity, Co-​ordination and Gov­ernance in the Eco­nomic and Mon­et­ary Union, signed on March 2^nd, 2012 (the SGC Treaty), rep­res­ents a more recent (and clearer) example of the func­tional use of the state of emer­gency in a way that is con­trary to the demo­cratic con­struc­tion of the EU and func­tional to respond to the pres­sure of the mar­kets. In what seems to be a clear viol­a­tion of EU Law, the Treaty, which has been signed by only 25 Mem­ber States and thus can­not be con­sidered European law, affirms that “Within five years at most fol­low­ing the entry into force of this Treaty, on the basis of an assess­ment of the exper­i­ence with its imple­ment­a­tion, the neces­sary steps shall be taken, in com­pli­ance with the pro­vi­sions of the Treaty on the European Union and the Treaty on the Func­tion­ing of the European Union, with the aim of incor­por­at­ing the sub­stance of this Treaty into the legal frame­work of the European Union.” A fur­ther del­eg­a­tion of the sig­nat­or­ies states’ prerog­at­ives to the cent­ral insti­tu­tions, in the name of fin­an­cial sta­bil­ity and the pre­ser­va­tion of the pro­ject of Europe as an actor on the global mar­ket, lies on the future hori­zon, a move that goes bey­ond the tem­por­ary sus­pen­sion of the stato di diritto for emer­gency needs, and that is aimed at affect­ing the Euro struc­ture bey­ond the cur­rent parentheses.

The SGC Treaty defin­it­ively del­eg­ates powers in favor of the European Com­mis­sion and the European Court of Justice, an exer­cise of uncon­strained auct­or­itas that, as affirmed by Her­man Van Rompuy him­self (“Regret­tably, it proved not pos­sible to achieve our object­ives via a reg­u­lar revi­sion of the EU Treaty, so we are work­ing out­side of it. Yet everything has been done to bring in the guar­an­tees and qual­it­ies which only the EU’s insti­tu­tional act­ors can provide, in par­tic­u­lar the European Com­mis­sion and the Court of Justice), has to hap­pen out­side of the law and that appears in clear viol­a­tion of the lim­its and prin­ciples of the European Union as an asso­ci­ation of States. Moreover, the object­ive and meas­ures con­tained in the Treaty, demon­strate that the con­cen­tra­tion of powers cre­ated in the empty space of the state of emer­gency is inten­ded to be the new paradigm, to be applied even in times of quiet. As the words of Josè Manuel Bar­roso indic­ate with little room for doubts (“This treaty rep­res­ents the very cul­ture of fin­an­cial sta­bil­ity that is the pre-​requisite for a true eco­nomic union”), the goal of the sta­bil­ity of the eco­nomic union as a global actor, i.e. the sta­bil­ity of the entire pro­ject that the European Union has been pur­su­ing since its birth, can­not be achieved without the trans­fer of power from the peri­pher­ies to the core, and the con­sequent sub­or­din­a­tion of the demo­cratic prin­ciples to the demands of cap­ital and the fin­an­cial markets.

Moreover, it is inter­est­ing to notice that the farther Europe gets from the epi­cen­ter of the crisis, the more the per­cep­tion of the emer­gency becomes rar­efied, but only because its pres­ence as an under­ly­ing source of ille­git­im­ate legit­im­acy has been nor­mal­ized – diluted into soft power – a hid­den men­ace that is even more power­ful than the vis­ible enemy. This trans­form­a­tion of the nar­rat­ive from openly vis­ible to invis­ible, brings the excep­tional char­ac­ter of the state of emer­gency into moments of quiet­ness, and is often unnoticed. How­ever, this is clear from the words of Chan­cel­lor Angela Merkel in Davos (“We have to become used to the European Com­mis­sion becom­ing more and more like a gov­ern­ment”), which rep­res­ent the per­fect bridge to move to the next stage and the ana­lysis of whether there exists, at least in abstract, a state of European quiet where demo­cratic prerog­at­ives can be effect­ively exercised.

An open sub­ver­sion of the lim­its and pro­ced­ures cre­ated to bound the exer­cise of power and avoid sub­or­din­a­tion of the peri­pher­ies has been tak­ing place within the frame­work of the European state of emer­gency, in what is con­sidered to be the core of demo­cratic and civil rights. How­ever, the phe­nomenon does not seem new, nor con­strained by tem­poral par­en­thesis. The prob­lem, we claim, resides in the use of the notion of crisis. If we adopt a lin­guistic per­spect­ive, we real­ize, in fact, that by focus­ing on the crisis we con­stantly repeat a mis­take, and auto­mat­ic­ally legit­im­ate the cur­rent unlaw­ful­ness. We have to stop focus­ing on con­tin­gen­cies and to grasp the sys­temic pic­ture. If we check the Oxford dic­tion­ary of the Eng­lish lan­guage, we dis­cover that the word ‘crisis’ is rooted in the idea of ‘decision’ (from the Greek verb krinen, to decide), while in Old Eng­lish the word denoted the turn­ing point of a dis­ease, the ‘decis­ive point’ in which choices had to be made. We real­ize, there­fore, that the exist­ence of a crisis not only depends on the object­ive pres­ence of an under­ly­ing dis­ease, but on the sub­ject­ive refusal to accept the pos­sib­il­ity that a dis­ease exists.

Con­sid­er­ing the sub­ver­sion of the core-​peripheries rela­tion­ship as a tem­por­ary meas­ure to chal­lenge an unex­pec­ted moment of dif­fi­culty leads, there­fore, to two wrong con­clu­sions: We start think­ing that there does not exist an under­ly­ing dis­ease, and that the situ­ation will go back to nor­mal­ity as soon as the emer­gency is over. On the con­trary, we need to start con­sid­er­ing the crisis as a cru­cial moment in a series of events gen­er­ated by a sick sys­tem. Only then, when events are no more excep­tional but deeply rooted in the under­ly­ing mech­an­ism, we real­ize that we have to focus on the under­ly­ing dis­ease, and we under­stand that it is incap­able of pro­du­cing normality.

Tomaso Fer­rando is a PhD Can­did­ate at Sci­ences Po Law School, Paris.

This entry was posted on 22 May 2012 at 6:00 am and is filed under Critical Legal Theory, Europe, Finance & the Economy, Jurisprudence. Published under Creative Commons (CC) Attribution-NonCommercial-ShareAlike 3.0 Unported License: You are welcome to share and remix this content for non-commercial purposes. Kindly acknowledge and hyperlink the source.