In February Tallinn University hosted an academic conference “Europe in Hard Times – What's to be Done?” with the aim to promote a sophisticated debate on a subject that is fundamental for our time: the shape and the content of European integration.
One of the participants of the conference is Massimo La Torre, a Professor in Philosophy of Law at the Law School of Magna Graecia University in Catanzaro, Italy, and a Visiting Professor of European Law at the Tallinn University. He has extensively researched in the field of European, Public and Constitutional Law. Currently he is working on the idea of European Citizenship, the concept of a constitutional state, and the comparative role of defense in different legislative systems.
‘You can go some distance with economic integration, but…’
How influential are legal scientists in the EU today? Do they have any influence on the real situation, on the EU politicians?
It’s very difficult to say. Depends on the politicians! If the politicians are intelligent, they will go and ask advice from the experts, from the scholars, and profit from this. But if the politician is not intelligent, if he or she is narrow-minded... But legal science can have an influence on politics in a different way. In the European Union, very important decisions are being made also, though not exclusively, by the judges at the European Court of Justice in Luxemburg. And here we might say that politics and legal science meet, also for the reason that judges are often legal scholars themselves. Take Dieter Grimm who was originally a university professor and is again a professor now, but in the meantime he was also a judge, a member of the very powerful German Federal Constitutional Court. Legal scholars and the judiciary are very close, sometimes they even coincide in many respects. This is very important for the EU. European law is mainly a product of judges.
What you are saying is that on the level of the EU, the connection between legal science and politics works?
Depends on the level of the EU politics, of course. We have the European Commission, but somehow even more important are Directorates-General headed by commissioners, and one director general has much power in his hands. Directors general are not politicians, they sometimes happen to be legal scholars.
I think all the participants of the conference know that there’s something wrong with the EU.
At the conference, there were at least two quite detailed proposals on how to deal with the EU’s problems. One was Fritz Scharpf’s elaborate project of reforming the voting system of the EU. The other one was Dieter Grimm’s proposal to make the parts of the Treaties secondary law, in other words, the EU should be deconstitutionalised, because in the present circumstances the member states don’t have enough room, so to say, they don’t have the leeway to deal with problems arising. One thing that is certainly wrong with the EU is that judges decide too much. In a sense, judges have replaced politicians.
The other problem is the idea that we can integrate member states only through the economy. It was Professor Majone’s point: this kind of integration doesn’t work. Moreover, people don’t understand what’s going on. Now with the Euro, this idea of the economy as an engine of European integration is even more problematic. You can go some distance with it, but there is a point where the integration should become political.
‘The judge who came from France and the judge who came from Hungary don’t understand each other smoothly’
Majone’s point was that we don’t have a clear goal...
Yes, and also that the process itself had become our goal in the end. Let’s take the big enlargement of the EU in 2004. I personally was perplexed about it, but the enlargement has been forced by the United Kingdom, and now they are out. Why did they want this? To water down the European Union? The first EU that consisted of six European countries was quite homogeneous: Belgium, France, Italy, Luxembourg, the Netherlands and West Germany were all Western Europe. Yes, they fought each other in the past, especially Germany and France, but nevertheless there was a common history.
But what is common history between, say, Italy and Estonia? And still they belong to the same organization. The European community is overstretched now. The traditions are different. Notwithstanding all the problems, and differences, in Western Europe, the rule of law was always very strong. Unfortunately, in Eastern Europe the rule of law tradition is not so strong for well-known historical reasons. You put together two different traditions, and what do you expect? The judge who came from France and the judge who came from Hungary don’t understand each other smoothly. They were educated in different ways, they have different background and values.
I am sure the very quick enlargement was kind of a mistake. The EU now is too big and extremely heterogeneous. And things happen that go against Western values. Take Hungarian PM Viktor Orbán’s speeches, or widespread Hungarian and now Polish antisemitism. How could we be in the same union with people that use antisemitism in political discourse?
What we have in the EU now is the British legacy of pushing for indiscriminate enlargement that has made the EU weaker. There was also at some moment the idea of having Ukraine in the EU, which is extremely imprudent. Or Turkey. At some point, there were people that would welcome Russia to join. Or Morocco. So yes, my impression is that the process of enlargement was seen as equivalent to that of integration and became a goal in itself, and for the bureaucrats in Brussels it was so good, you see, they had work to do!
Ok, but what could be done about it? You cannot kick out countries from the EU...
No, you cannot. And you should not. But we must be very prudent about the future, with countries that wish to join us, like Serbia for instance, or Turkey. The bigger the union, the less definite the goal of the union is. A federation of six original members was in principle thinkable and possible. Another difficult predicament: Euro applies to such different countries with such different economies like Germany, Italy, Greece or Estonia…
Dieter Grimm said in the end that there should be some third way. It is clear we won’t have a political federation, it’s also clear that we won’t retreat to the national states. Professor Eleftheriadis proposed a “union of peoples”…
I think there is much rhetoric in it. What are “peoples” without states? There is one thing to be sure about, in my view: we had and will have again and soon problems, turbulence, with the Euro. The situation might become really difficult. We have some countries on the brink of possibly huge problems, Italy for instance. Italy was once a very pro-European country, but now the support for the EU would be quite small... So, I think the only way for the EU to survive and prosper again will be somehow to de-escalate the level or the mode of integration or slow down its pace. We should go somewhat backward, not forward. Majone here had a good point: we should promote a major functional differentiation. A domain he suggests that is open to a thicker functional approach to integration is the sphere of common defence, though I must say I am sceptical about it: our security is still based on a transatlantic scheme. It’s not imaginable for Europe to be militarily independent from the US. Nobody in the EU wants that. However, without a common European defence you cannot have the common foreign policy. And here again Majone has a good point.
‘Integration and loyalty are based on equal concern’
One of your subjects is European citizenship. Now all people with the passports of the EU member states can proudly say that “we are European citizens”. Is there something more to this?
European citizenship could be a lot more, of course, but I don’t think we will get more. For instance, a resident with a European passport could vote in the national elections. Now if I am a resident in Estonia and I have an Italian passport, I can’t vote in the national elections. But why not? I can participate in the municipal elections, by the way, but I cannot elect the Estonian parliament. Also, we have the Erasmus programme, it’s a student exchange programme, and it might be good to have a similar programme in the field of employment. A young Italian person would thus go for six months or longer to work in an Estonian hospital or in some other public institution. This would be the real “union of peoples”.
In your opinion, could we once have the same base for EU citizenship? What should it be, ius soli or ius sanguinis?
Yes, we could; but this is a very sensitive area for the states. Of course, states prefer to decide what the principles of citizenship they adopt should be. If you take this right from the state and give it to the Union, you will have a federation by one stroke of a pen. In principle, I am for a ius soli solution. Ius sanguinis is a traditional and obvious solution, but there should be a possibility to have also the nationality of the country where you were born. Also, there should be an easy path of naturalisation for those who have been living in the country for several years and speak the language.
Estonia has a certain problem in the sphere of citizenship, namely the non-citizens problem. We have a huge number of persons with so called gray passports, 83 thousand, 6-7% of the population. Many of these people were born here and have been living in Estonia all their lives. They have problems in the EU, for example; they have to apply for work permits…
I don’t know the details of the Estonian situation and nationality legislation, I am sorry, but in general I think you cannot deny nationality without infringing upon basic human rights. You know that there is Article 15 of the Universal Declaration of Human Rights stating that (1) everyone has the right to a nationality and (2) no one shall be arbitrarily deprived of his nationality. Which means you cannot be denied a nationality without being made automatically entitled to get another one. I find a situation or a society where you have so many non-citizens or stateless people to be really peculiar and indeed worrying. It is especially worrying in political and social terms, since you will have a mass of people that, being legal pariahs, will not feel integrated in the country and cannot be in good faith asked to be loyal to that country. Both integration and loyalty are based on equal concern, on rights that are universally granted, as is well argued by the late, great American philosopher of law, Ronald Dworkin.