Politicization without democratization: How the Eurozone crisis is transforming EU law and politics

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This article demonstrates how the European integration process overburdened EU law in an attempt to overcome political deficiencies, with negative consequences for the EU’s democratic legitimacy. The analysis is framed by the “twin crises” of
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  I•CON (2014), Vol. 12 No. 3, 545–571 doi:10.1093/icon/mou043 © The Author 2014. Oxford University Press and New York University School of Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com Politicization without democratization: How the Eurozone crisis is transforming EU law and politics Nicole Scicluna* This article demonstrates how the European integration process overburdened EU law in an attempt to overcome political deciencies, with negative consequences for the EU’s democratic legitimacy. The analysis is framed by the “twin crises” of twenty-rst-century EU constitu-tionalism: the defeat of the Constitutional Treaty in 2005 and the unfolding Eurozone debt crisis. Part of the legacy of the rst crisis was a retreat from the ideal of democratization via politicization. Now, as a result of the second crisis, the integration project has become  politicized and European policies highly salient for national voters. However, this process has occurred largely against the will of EU leaders, who have sought technocratic solutions to what are inherently political problems. Thus, over the past decade, the EU has moved from an unsuccessful attempt at democratization via politicization to an unintended politicization without democratization. 1. Introduction Law has always been an important vehicle for promoting supranational integration in Europe. To some extent, the privileging of law was even to the detriment of democratic politics, which remains underdeveloped at the EU level. However, this constellation is changing as a result of the Eurozone financial crisis, and not for the better. This article will argue that the crisis is fueling two separate, though interconnected, dynamics in the EU’s law–politics relationship. The first is the waning power of law and its replace-ment with other tools of non-majoritarian and technocratic governance—a trend that Christian Joerges referred to as the “de-legalization” of Economic and Monetary Union (EMU). 1  The second is the politicization of EU policies in crisis-related areas (that * Postdoctoral Fellow at Collegio Carlo Alberto, Turin. Email: nicole.scicluna@carloalberto.org. 1  Christian Joerges, Recht und Politik in der Krise Europas: Die Wirkungsgeschichte einer verunglück-ten Konguration  [Law and Politics in the European Crisis: The History of Effects of an Unfortunate Configuration], 66 M ERKUR  1013, 1015–1016 (2012).   b  y g u e  s  t   on N o v e m b  e r 1  0  ,2  0 1 4 h  t   t   p :  /   /  i   c  on . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   546 I•CON   12 (2014), 545–571 is, their increased salience with voters) without a corresponding democratization of EU policymaking, since the European Parliament and the “Community method” of lawmaking have been sidelined in favor of the aforementioned technocratic and inter-governmental solutions.Law’s prominence in the EU is epitomized by the extent to which the integration project was judicialized from the outset, largely by the path-breaking constitutional  jurisprudence of the Court of Justice of the European Union (CJEU). This phenom-enon is considered in Section 2, along with one of its more problematic legacies: the entrenchment of non-majoritarian modes of governance as the norm at the expense of European-level, democratic political contestation. The 2004 Constitutional Treaty (CT) was, in some ways, an attempt to redress this imbalance between law and politics; though couched in legal terms, it was an attempt to energize and enlarge an incipient European public sphere. In other words, the Constitution’s framers sought to publicize and politicize the EU, in order to democratize it. However, in what may be regarded as the first of the “twin crises” of twenty-first-century EU constitutionalism, ratification of the CT failed and European leaders subsequently returned to a “de-constitutional-ized” and de-politicized style of treaty making with the Lisbon Treaty.The EU’s complex and contradictory relationship with democracy—as an organiza-tion comprising liberal democratic states that does not live up to its own high demo-cratic values—is taken up in Section 3, which examines the impact of the Union’s so-called “democratic deficit” at both national and European levels. I will argue that the democratic deficit is being exacerbated by the Eurozone crisis, the second of the “twin crises” of contemporary EU constitutionalism, and the focus of this article. Section 4 then analyzes some of the key crisis response measures and their consequences from a more detailed, legal perspective. In an inversion of the situation described in Section 2, initiatives such as the European Stability Mechanism (ESM) and Fiscal Compact have a significant capacity to undermine  the rule of law in the EU and, thereby, the integration project’s legitimacy. This contention is taken further in Section 5, which notes that the “Community method” of lawmaking that, supported by a network of supranational and national courts, was instrumental in molding the EC’s constitutional framework from the 1960s to the 1980s is being increasingly bypassed. In its place is emerging a new system, which Jürgen Habermas termed “post-democratic executive federal-ism,” 2  and which relies on a combination of intergovernmental decision-making in the European Council (largely spearheaded by a small group of member states, above all Germany) and formally apolitical, technocratic institutions such as the European Central Bank (ECB).These developments bode ill for the democratic quality, legitimacy, and, ultimately, sustainability of the European project. As noted, EU policies have become much more highly salient, but, at the same time, policymaking has become less accountable and transparent. In fact, over the past decade, the EU has moved from an unsuccessful attempt at democratization through politicization (the Constitutional Treaty) to an unintended politicization without democratization (the Eurozone crisis). 2    J ÜRGEN  H ABERMAS , T HE  C RISIS   OF   THE  E UROPEAN  U NION : A R ESPONSE  12 (Ciaran Cronin trans., 2012).   b  y g u e  s  t   on N o v e m b  e r 1  0  ,2  0 1 4 h  t   t   p :  /   /  i   c  on . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   Politicization without democratization: How the Eurozone crisis is transforming EU law and politics  547 2. The judicialization of politics and its impact on European integration The remarkable story of European integration through law is well known and need not be recapitulated. 3  Suffice it to note that it is remarkable for three main reasons. First, for the central role played by the CJEU in creating and promoting a coherent and enforceable system of Community law; a role that the Court largely ascribed to itself, with only limited guidance from the Treaty of Rome. Second, because the pro-cess of integration through law was, in Joseph Weiler’s famous formulation, a “quiet revolution,” occurring largely by stealth during its formative, pre-Maastricht Treaty period. 4  Third, and perhaps above all, supranational legal integration was notable for its success in turning the EU from a treaty-based international organization centered on a common market into a constitutionalized non-state actor  par excellence  —more-over, for achieving this in the absence of comparable political integration and a strong sense of a common identity amongst member state citizens.Nevertheless, law’s integrative power—and its ability to compensate for political deficiencies—is finite. By ignoring constraints on the scope and depth of European integration that were inherent in the judicially driven “quiet revolution” model, law was overburdened by the ever-increasing demands made upon it, particularly by the currency union. 5  Understanding the judicialization of European integration is, there-fore, key to understanding why the Eurozone crisis is also a crisis of law and politics in the EU.R. Daniel Kelemen used the term “Eurolegalism” to describe how “the judicializa-tion of politics in Europe has led courts to become involved in nearly every sort of major political and policy dispute imaginable.” 6  While it has its advantages, one nega-tive outcome of this phenomenon is its tendency to overtax EU law by tasking it with disproportionate responsibility for legitimating supranational governance. This mani-fests itself in what Damian Chalmers described as “the cumbersomeness of EU law,” that is, “the added significance or resonance attributed to a provision simply by virtue of it having an ‘EU’ tag.” Chalmers argued that this cumbersomeness could only be understood by reference to “the claims EU law makes about itself.” 7  In order to jus-tify the existence of its institutional machinery, EU law is compelled to promise goods that would be otherwise unattainable by other levels of government or other forms 3   See, e.g. , Eric Stein, Lawyers, Judges and the Making of a Transnational Constitution , 75 A M . J. I NT ’ L  L.  1 (1981); Anne-Marie Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal Integration , 47 I NT ’ L  O RG .  41, (1993);  J OSEPH  H. H. W EILER , T HE  C ONSTITUTION   OF  E UROPE : “D O   THE  N EW  C LOTHES  H AVE   AN  E MPEROR ?” A ND  O THER  E SSAYS   ON  E UROPEAN  I NTEGRATION  (1999); A LEC  S TONE  S WEET , G OVERNING   WITH  J UDGES : C ONSTITUTIONAL  P OLITICS   IN  E UROPE  (2000). 4  Joseph H.H. Weiler, A Quiet Revolution: The European Court of Justice and Its Interlocutors , 26 C OMP . P OL . S TUD .  510 (1994). 5  Michelle Everson & Christian Joerges, Reconguring the Politics-Law Relationship in the Integration Project through Conicts-Law Constitutionalism , 18 E UR . L.J.  644, 645 (2012). 6  R. Daniel Kelemen, Eurolegalism and Democracy , 50  J. C OMMON  M KT  S TUD .  55, 59 (2012). For a global per-spective, see  Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts , 11 A NNUAL  R EV . P OL . S CI .  93 (2008). 7  Damian Chalmers, Gauging the Cumbersomeness of EU Law , LEQS Paper No.  2, at 1–2 (2009).   b  y g u e  s  t   on N o v e m b  e r 1  0  ,2  0 1 4 h  t   t   p :  /   /  i   c  on . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   548 I•CON   12 (2014), 545–571 of transnational cooperation. These overinflated claims are also partly an attempt to make up for the lack of strong affective ties between the EU and its citizens. However, this strategy carries a considerable risk of backfiring. Its reliance on a politics of bet-terment, which Chalmers terms a “European eudaimonia ,” “leads to an escalation of expectations of government and of the citizen that will not only never be met but can also generate perceptions of breakdown or crisis.” 8  Thus, in times of weak—or even negative—growth and economic tumult, such as Europe currently faces, the EU’s seeming impotence is exacerbated by the unrealistic standards it has set itself.Still, there were good historical reasons for privileging juridified modes of gover-nance in the European Union. Weiler described the project’s founders’ “pronounced reliance on the law and legal institutions” as “not only an audacious but also a pru-dentially wise choice.” 9  The rise of Eurolegalism in post-war Europe coincided with a reevaluation of ideal modes of democratic governance at the national level. Unfettered parliamentary democracy had been widely discredited in continental Europe by the experience of fascist parties seizing power through democratic processes and then using their power to destroy liberty and democracy. Many post-war European govern-ments responded by creating strong and independent constitutional courts charged with protecting individual human rights and given extensive powers of judicial review, while also constraining popular sovereignty and its most important manifestation, the directly elected parliament. 10  In broad terms, West European politics after the Second World War was characterized by a shift from a democratic model heavily centered on representative institutions, to liberal, constitutional democracies, or, as Jan-Werner Müller termed them, “self-disciplined democracies.” 11 Developments in the constitutional practices of West European states were comple-mented by events at the European level. The European Coal and Steel Community (ECSC) was an early example of elite-driven integration overseen by non-majoritarian institu-tions. Under the ECSC’s system of governance, authority over member states’ coal and steel sectors was ceded to a supranational High Authority, forerunner of the European Commission. This body consisted of unelected technocrats accountable to national exec-utives as represented in the Council of Ministers. Though the ECSC featured an Assembly comprised of national parliamentarians, its powers were weak and its membership nominated rather than elected. Following the entry into force of the Treaty of Rome on  January 1, 1958, the Assembly became a common institution of the three European com-munities (ECSC, European Economic Community (EEC), and European Atomic Energy Community (EURATOM)). However, it remained marginal to the process of European integration, even after renaming itself the “European Parliament” in 1962. 12 8   Id. , supra  note 7, at 8–10. 9  Joseph H.H. Weiler, The Political and Legal Culture of European Integration: An Exploratory Essay , 9 I NT ’ L   J. C ONST . L.  678, 687 (2011). 10    J AN -W ERNER  M ÜLLER , C ONTESTING  D EMOCRACY : P OLITICAL  I DEAS   IN  T WENTIETH  C ENTURY  E UROPE  146–149 (2011). 11   Id.  at 125–130 ;  Kelemen, supra  note 6, at 63–64. 12  Roger Scully, The European Parliament , in   E UROPEAN  U NION  P OLITICS  162, 163–165 (Michelle Cini & Nieves Perez-Solorzano Borragan eds., 2010); Derek W. Urwin, The European Community: From 1945 to 1985 , in   E UROPEAN  U NION  P OLITICS ,  15, at 16.   b  y g u e  s  t   on N o v e m b  e r 1  0  ,2  0 1 4 h  t   t   p :  /   /  i   c  on . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om   Politicization without democratization: How the Eurozone crisis is transforming EU law and politics  549 Like the institutional changes that occurred at the national level, the belated and incremental empowerment of the European Parliament may be partly explained by the post-war aversion of continental European elites to the excesses of majoritarian democracy. An elected legislature was not essential to an enterprise that was preoc-cupied with constraining peoples and preventing their backsliding into authoritar-ianism. 13  Such an approach to European integration was understandable, and even legitimate, given the political context of Europe in the late 1940s and 1950s, but the implications for the EU today are profound. The undemocratic institutional structures that marked the Community at its inception are increasingly frustrating attempts to promote further and closer integration. Simply put, “[d]emocracy was not part of the srcinal DNA of European integration,” and its absence will not be remedied by any amount of tinkering at the margins. 14 Therefore, the impact of judicialization on European integration is paradoxical. On the one hand, the heavy reliance on legal integration allowed the European project to take root and thrive; growing from a six-member common market to a 28-member Union with extensive clout beyond the internal regulation of goods, services, capital, and labor mobility. On the other hand, the very success of supranational judicializa-tion made the EU’s undemocratic nature increasingly problematic as its reach was extended to ever more “mega-political” issues. 15  That the corollary to the judicializa-tion of politics is the politicization of courts may seem obvious, but it bears explicit mention because it foreshadows another significant dimension of the democratic deficit. The EU’s reliance on legal regulations and judicially enforceable rights points towards a more general preference for technocratic modes of governance and a ten-dency to politicize non-majoritarian institutions. In this connection, one notable out-come of the unfolding Eurozone crisis has been the growing tendency of the formally independent and notionally apolitical ECB to take what are, in fact, highly political decisions, for example, in relation to the purchase of Eurozone sovereign debt. Here too, the politicization of an institution that lacks political embeddedness and clear lines of accountability is a serious challenge to the notion of democratic governance. 3. The EU’s democratic deficit—what it is and why it matters Democracy is at the heart of Europe’s self-understanding. As an idea, it is central to the project of European integration, and is deeply embedded in the EU’s constitutional framework. Thus, for example, the Treaty on European Union (TEU) contains numer-ous references to this core principle, including in the preamble, where democracy is described as part of the “cultural, religious and humanist inheritance of Europe,” and article 2, which lists democracy as one of the Union’s founding values. Perhaps most 13  Stefan Auer, The European Union’s Politics of Identity and the Legacy of 1989 , 15 H UMANITIES  R ESEARCH  135, 137–138 (2010). 14  Weiler, supra  note 9, at 694. 15  On the judicialization of “mega politics” see  Hirschl, supra  note 6.   b  y g u e  s  t   on N o v e m b  e r 1  0  ,2  0 1 4 h  t   t   p :  /   /  i   c  on . oxf   or  d  j   o ur n a l   s  . or  g /  D o wnl   o a  d  e  d f  r  om 
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