The EconomistJuly 25th 2020 Europe 43“I
f in thefirst act you have hung a pistol on the wall, then in the
following one it should be fired.” Anton Chekhov’s rule on
writing is a good one. The Russian author would have despaired at
the Treaty on the Functioning of the European Union. At 154 pages
in its consolidated version, it is a bit long. The prose lacks punch.
More importantly, it is littered with unused firearms. Powerful
weapons gather dust in the eu’s legal gun-cabinet. Article 222 ob-
liges all eustates to pile in and help if a desperate national capital
triggers it, which no one ever has. National capitals can sue each
other in the European Court of Justice, although no one has tried it
properly. Even the outlines of an euarmy are there, if the members
want it, which so far they do not.
Now, however, European officials are eyeing up the armoury.
Hitherto unused, overlooked or reinterpreted rules provide the le-
gal bedrock for renewed attempts to integrate the bloc in ways un-
imaginable a few months ago. Such rules were used to allow the eu
to issue €750bn of collective debt and then hand it over to member
states, with over half of that sum—€390bn—in the form of grants
which will not be paid back. At first glance, this plan grinds against
the clear principle that the euis not liable for the debts of its na-
tional governments. Instead officials pointed to a vaguer article
declaring that the euhas the right to “provide itself with the means
necessary to attain its objectives and carry through its policies”. It
is a small foothold for the creation of a de facto federal deficit,
which is probably the eu’s biggest constitutional leap since the
creation of the euro.
Similar ingenuity is afoot when it comes to the powers of eu
states to veto legislation they dislike. At the moment, any national
government can block an eutax policy. Now the European Com-
mission is pondering a scheme which would bypass individual ob-
jections, if a country’s tax policy distorts the single market—a so
far unused part of the treaty. The threat is clear: if a country’s tax
scheme is so generous that it bends the single market out of shape,
the euhas the right to come and nix it. It is the same story when it
comes to foreign and environmental policy, where one or two
member states dragging their feet can scupper ambitious plans. In
both areas, officials are examining ways of ensuring that a quali-
fied majority of governments can push through proposals, even ifa minority objects. “It would be better to adopt a strong and sub-
stantial position by a majority rather than unanimously adopting
a weak position with little substance,” argued Josep Borrell, the
eu’s foreign-policy chief, in a recent interview.
Backdoor integration is in vogue. The thought of the wholesale
overhaul of the eu’s treaties makes diplomats nauseous. Changing
the union’s legal order would require a wave of referendums across
Europe, which have tended not to end well from the eu’s perspec-
tive. For a union that rewrote its constitutional rule book every few
years during the 1990s and 2000s, this is a problem, particularly as
the current one—the Lisbon Treaty—is showing its age. Since it
came into force in 2009, a euro crisis has been and gone, a migra-
tion crisis flared and a member state has left the union. Rather
than rip it up and start again, euofficials are following Chekhov’s
advice and using the legal weapons already lying about.
The strategy has been successful elsewhere. America provides
the closest analogy. Throughout the 19th and 20th centuries, the
federal government’s right to regulate commerce “with foreign Na-
tions, and among the several States, and with the Indian Tribes”
was used to suck power up to the national level. It settled law for
everything from the humdrum (regulating waterways) to the
transformational (civil rights). In the euthe single market plays a
similar role to the “commerce clause” of the American constitu-
tion, giving euinstitutions the right to muscle into almost any
area they please under the guise of protecting the union’s trading
rules. The single market drags eumembers closer together, wheth-
er they appreciate it or not.Sneaky treaty
Yet integration by stealth has its drawbacks. It can disconcert citi-
zens. During the euro-zone crisis, German and Dutch voters—and
others across northern Europe—were perplexed and irked when
the clauses in the eu’s treaties that supposedly banned bail-outs
turned out to do no such thing. The €750bn covid-19 scheme is jus-
tified as an extraordinary, temporary measure. Yet temporary
schemes can become permanent fixtures, as anyone who has visit-
ed the Eiffel Tower can see. Nor are such tactics guaranteed to suc-
ceed legally. Whereas the European Court of Justice has been an
engine of integration, it has few qualms about slapping down the
commission if it shows too much legal ingenuity. Attempts by the
commission to use state-aid rules—which ban unfair subsidies to
local business—to crack down on the light-touch tax regimes of
countries such as Ireland and the Netherlands, have been thrown
out. Guns sometimes backfire.
Limiting the right of member states to veto sweeping plans may
speed up integration. Efficiency, however, comes at a cost. Una-
nimity is an ugly process, as those who sat through the eu’s mam-
moth five-day meeting on its recovery fund can attest, but it builds
consent. Although everyone from mighty Germany to tiny Malta
must make sacrifices, none is forced to capitulate entirely. In-
creased use of qualified majorities leads to a more coercive eu, ar-
gues Hans Kundnani of Chatham House, a think-tank: countries
that vehemently oppose a policy are compelled to follow it. During
the migration crisis, the eupushed through refugee quotas on a
qualified majority vote. Though well within the rules, it further
soured an already difficult discussion. Using similar means for
topics such as foreign policy or taxation could lead to a backlash.
Firing the gun may make for a better plot, and perhaps even a more
effective eu, but not necessarily a happier one. When wielding a
gun, you should be careful where you point it. 7Charlemagne Chekhov’s treaty
The eu takes a lesson from a Russian playwright