What does Viktor Orbán have in common with the German Constitutional Court? They both defend a ‘Westphalian’ system under which sovereign states are seen as masters in their own house. Accordingly, the EU is no more than the sum of its parts. Attacking the European Parliament ever so critical of him, Orbán for instance wants it to be composed of national parliamentarians. (https://www.euractiv.com/section/politics/short_news/orbans-europe-vision-dismantle-eu-parliament/) So, no elections, no representation of the people of Europe. There ain’t such a thing, says Orban with an eye on the ongoing Conference on the Future of Europe. (https://futureu.europa.eu/)
There has been no reaction from the European Commission busy taking its largest member states, Germany, to the EU Court of Justice (ECJ) about the refusal of its highest court to recognise the supremacy of European law. The issue is in the (European) news. Much like before (see ‘The EU a Tangle’ on this blog) Jaap Hoeksma gives another of his learned commentaries. (https://euobserver.com/opinion/152160?utm_source=euobs&utm_medium=email)
The issue, he explains, is whether the EU is a ’compound state’ (Staatenverbund in German) or a novel construct which, although difficult to define (the term used is often ‘sui generis’) exercises powers of its own that the member states must respect.
Surely, Orbán‘s verges towards the position of the German court that there is no European people in the real sense of the word.Orbán‘s apologist Frank Furedi (2018, 128) talks therefore about the borders defining each people as ‘…the only foundation of the institutialisation of democratic accountability.’
In terms of the governance of space, much as Orbán does, without saying so, the German court preaches the ‘territorialism’ which I belabour in these blogs. On the face of it, the ECJ might be doing the same. Does not the primacy of European law after all imply that the EU is a (super-)state? And does this not imply territorialism, albeit at a larger scale, a ‘fortress Europe’? And don’t we wish for Europe being a ‘geopolitical player’, a ‘natural partner’ to the US and to be pulling its weight as a permanent member of the UN Security Council?
But perhaps we had better reflect about the EU construct as such. If neither a ‘compound state’ – the latter position once again shared by the German Court and Orbán – nor a ‘superstate’, what then? In that previous blog, I suggested Hoeksma having given us the clue. Focussing on citizenship, he argues that EU citizenship is not grafted upon the citizenship of one of the member states. It is rather like – this being my own spin on the matter – membership in a club called EU, with rights and obligations flowing from it. Which means that the EU exists in its own right. But I also point out there that we had better see same EU, not as one, but rather as a cluster of clubs. In Faludi (2018 ) I invoked the metaphor of the EU as a cloud of arrangements. In terms employed here, one would say: a cluster of clubs with different arrangements each, some of them even overlapping – think about Schengen – the EU’s external borders.
Consider the arrangements, much hated in certain circles for a new border in the Irish Sea between Northern Ireland and the remainder of the UK. The Northern Irish are thus in a different club from citizens in the rest of the UK (but all of them, together with citizens of the Republic of Ireland are members of yet another one, the Common Travel Area. (https://en.m.wikipedia.org/wiki/Common_Travel_Area) Also, under Irish law, much as descendants of Irish citizens worldwide, by virtue of being on the Isle of Ireland, the Northern Irish have the automatic right to an Irish passport. (http://brexitlegal.ie/irish-citizenship/.)
Did I not say that ours is no longer the well-ordered Westphalian world, Orbán’s – and the German Constitutional Court’s – frame of reference?
Faludi, A. (2018 ) The Poverty of Territorialism: A Neo-medieval View of Europe and European Planning, Edgar Elgar, Cheltenham, UK.
Furedi, F. (2018) Populism and the European Culture Wars, Routledge, London.
The source of the image of the Common Travel Areas is: https://flyinginireland.com/2015/12/passports-passport-cards-and-the-common-travel-area-between-ireland-and-the-uk/