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,1Judgment of 30 June 2009 – 2 BvE 2/08, 2 BvE 5/08, 2BvR 1010/08, 2 BvR 1022/08, 2Bv” 1259/08 und BvR 182/09 – Act approving the Treaty of Lisbon compatible with the Basic Law 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.2Bianco, Giuseppe, The New Financial Stability Mechanisms and their Consistency with EU Law, Paper presented at the Workshop EUDO/STALS/CSF, The Constitutional Architecture of the Economic Governance in the EU, European University Institute, Fiesole, 23 March 2012, quoting Viterbo, A.; Cisotta, R. La crisi della Grecia, l’attacco speculativo all’euro e le risposte dell’Unione europea, in Il Diritto dell’Unione Europea, 2010, n. 4, p. 980
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 31st, the proposal was withdrawn only few days afterwards, on November 3rd, 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 2nd, 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.