FOCUS_Europe

A battle-tested community­­

The Europeans have plenty of experience of dealing with crises. If we take a look at the history of the community of European states, one thing becomes clear: more or less heated controversies have been a regular occurrence over the decades. However, it has always been possible to find strategies for overcoming them, as the team headed by Stefan Vogenauer at the Max Planck Institute for European Legal History in Frankfurt/Main is finding out in the course of its research. During the process, the researchers have also gained new insights into the current state of the European Union.

TEXT MECHTHILD ZIMMERMANN

18 MaxPlanckResearch 1 | 19 A summit with new delegates: in October 1972, the six founder states of the European Community were joined for the first time by Great Britain, Ireland and Denmark at a meeting of the European heads of state and government. In the years that followed, vetoes by individual members repeatedly blocked agreements on a large scale.

russels, in the summer of 1965: policy. According to Stefan Vogenauer, 1958. It was agreed in these treaties that “Three minutes after midnight, Director at the Max Planck Institute for the establishment of an internal Euro­ the lights went out in the Palais European Legal History, this phase was pean market and the gradual conver­ de Congrès. The ministers gath- marked by the most severe crisis in the gence of economic policy was to pro­ ered in Brussels (...) were sitting history of European integration. As an mote prosperity in the countries and in theB dark. Anyone who might have re- act of protest, the French government improve relations between the states. garded this as a bad omen would soon at the time recalled its permanent rep­ However, opinions about how far inte­ see their fears confirmed: after the short resentative in Brussels, refused to at­ gration would have to go varied widely. circuit had been repaired, it only took tend the meetings of the Council of The French President at the time, another 107 minutes for the negotiations Ministers, and in so doing, blocked the Charles de Gaulle, could certainly be to fail. On 1 July, shortly before 2 o’clock entire Community for half a year. described as a Eurosceptic from today’s in the morning, the most severe crisis yet Only seven years previously, Ger­ perspective. While he was in favor of a to hit the Common Market began.” many, France, Italy, Belgium, the Nether­ Europe with France and Germany as The night of 9 July 1965, the bitter lands and Luxembourg had joined supporting pillars, his greater priority end of which was described by the together to form the European Eco­ was helping his country regain its for­ weekly newspaper Die Zeit, marked the nomic Community (EEC). The Treaties mer global status. For de Gaulle, na­

Photo: Ulrich Wienke/Federal Government of Germany beginning of the use of the empty chair of Rome had come into force in January tional independence was of key impor­

1 | 19 MaxPlanckResearch 19 FOCUS_Europe

European Court of Justice Judges from all member states

judges and interprets EU law crisis mode.” One of the few exceptions was the period at the end of the 1980s EU and the early 1990s, when Jacques Delors was President of the European Commission and agreement was reached EU Commission Council of Europe over the Single European Act and the Commissioners Treaty of Maastricht. “There have always Summit of the heads (one independent commissioner been times when giant strides towards of state and government for each member state) European integration were made,” says Vogenauer. “However, they were again followed by long periods of tactical defines the general political withdrawal or stagnation.” direction proposes legislations monitors Nevertheless, there are always two sides to a crisis. Walter Hallstein, who was the first President of the EEC Com­ mission from 1958 to 1967, firmly be­ lieved that the European Community could “gain in stature and stability, par­ Minister ticularly in times of escalating crisis,” explains Philip Bajon, a historian in Vogenauer’s team. “This was a part of Council of Ministers European Parliament jointly decide his theory and his self-identification as Ministers from the member on legislation 751 delegates President of the Commission: integra­ states for specific areas and the from all tion through crisis – the more severe, (e.g. Foreign Minister or EU budget member states the better.” Minister of Agriculture) Hallstein was a professor of law and a staunch European. As one of the is directly founding fathers of the European Com­ Divided leadership: along with the EU Commission and elected by munity, he regarded Europe as a Com­ the European Parliament as supranational institutions, munity of Law (Rechtsgemeinschaft) – the individual member states in the Council of Europe an idea that has since played an and the Council of Ministers also have an influence over the development of the Union. The European Court of important role in the debate surround­ Justice acts independently but has repeatedly driven EU citizens ing European integration. Even so, it is forward integration in the past. not so easy to clearly define what the “European Community of Law means,” explains Thorben Klünder, who is ex­ tance, and he accordingly took a critical that the French returned to the table amining the concept for his doctoral view of cross-state European institu­ with the other EEC members, where thesis. “On the one hand, it is assumed tions. The controversy that ultimately they then negotiated what became that there was already a Community culminated in the crisis of 1965 flared known as the “Luxembourg Compro­ of Law before the European states up over two issues. Majority voting was mise”: a veto option for certain states came together by signing an agree­ to be extended to a series of important which regarded their national interests ment.” The European Community is questions. Moreover, in de Gaulle’s as being in danger. therefore something akin to a commu­ view, the EEC Commission under Walter nity of values that had already had a Hallstein was acting like “a European INTEGRATION THROUGH CRISIS – common legal basis for hundreds of government”, since it was planning for THE MORE SEVERE, THE BETTER years in the form of Roman law. example to introduce a separate Com­ On the other hand, the term is also munity budget. Events show that the atmosphere in Eu­ used in the sense of an ideal, according However, there were other reasons rope was by no means more peaceful to which the European states should for the French blockade. The French and harmonious in the past. “There become ever more closely aligned in President wanted to secure a dominant have always been crises,” says legal his­ legislative terms, as Klünder explains: role for his country in the European torian Stefan Vogenauer, “and they are “In the view of Walter Hallstein, for ex­ Community and to strengthen the in­ easily forgotten. Since I’ve been follow­ ample, we were a Community of Law fluence of the national governments ing its development, the European and were to become an even stronger

overall. It was not until January 1966 Union has in fact been in permanent one.” According to Klünder, there is no Graphic: designergold based on a draft by the MPG

20 MaxPlanckResearch 1 | 19 doubt that the different meanings of the word have influenced our under­ standing of the European Community: “The Community of Law can certainly be perceived as a narrative of how Eu­ ropean integration can succeed, name­ ly through the law.” However, what might sound good in theory is proving difficult to realize in practice. Even if there is a certain de­ gree of consensus in Europe about the rule of law or basic rights, matters get complicated as soon as it comes to the details. Since the European Union’s main focus is still the internal market, the goal in question is “merely” the cre­ ation of equal terms for the economies of all member states. However, these terms ultimately influence topics that relate to everyone: consumer protec­ tion, environmental protection, work­ ers’ rights, and national ways of dealing with issues ranging from food produc­ tion to the design of car number plates.

A BLACKCURRANT LIQUEUR CHANGES POLITICS

Philipp Schmitt, who is also a doctoral student in Vogenauer’s Department, explains how it soon became clear that agreeing on entirely congruent legal rules for all states was an impossibility. “The European Commission wanted to drive forward the Community of Law and attempted to achieve legal stan­ dardization. However, time and again, in petrol. “Germany was the only coun­ Working for Europe: when in 1975, the British the countries expressed their opposi­ try to have already significantly reduced first voted on membership of the European tion. This became particularly problem­ the lead content by law when the stan­ Community, Margaret Thatcher as the leader of the Conservative Party advocated saying yes atic in areas in which the members dard was to be unanimously aligned at to Europe. She met with success: more than were supposed to agree unanimously.” European level. The other members two-thirds of voters were in favor. The argu- Schmitt is researching the development wanted to reduce the lead content in ments on both sides at that time are largely of a legislative technique known as stages; however, Germany successfully the same ones that are used today. minimum harmonization. This offered proposed a derogation that permitted a way out of the dilemma that was fre­ more stringent limits.” In his analyses, While minimum harmonization may quently used from the 1960s until the Philipp Schmitt also comes across coun­ not conform to the ideal of legal unifi­ recent past. For EU directives, i.e. for try-specific patterns: “It is those states cation, the EU has in Philipp Schmitt’s rules that need to be converted by the that have high standards in certain areas view certainly benefited from the op­ individual states into their own laws, it that most frequently press the case for tion of allowing more stringent mea­ created room for maneuver for national derogations. Environmental protection sures: “I think that in a Europe with concerns. The states only needed to was often an important issue for the opposing views, this was a good way of agree on a minimum standard, with Germans, while the Danes insisted on making progress in the single market more stringent rules possible. asserting their principles when it came without ignoring social issues or envi­ Schmitt cites an early example to social matters and the British were ronmental and consumer protection.”

Graphic: designergold based on a draft by the MPG Photo: dpa report from the 1970s, the reduction of lead particularly keen on animal welfare.” After all, this is precisely the danger

1 | 19 MaxPlanckResearch 21 22 which theEuropeanCourt ofJustice mutual recognition.” product alignmentandtowards more ment preparedthepathaway from movement ofgoods.TheCJEU judg requirements inordertoenablethefree tosetuniform appeared tobenecessary in adirectiveon‘Euroliqueur’,sinceit would havepreviouslybeenspecified called not findthatsuchgroundsapplied. In thecaseofliqueur, thecourtdid or whenthereisarisktopublichealth. purposes example forfiscalsupervision requirements,for to fulfillmandatory market whenthisisdeemednecessary may onlyrestricttheEuropeaninternal sion bysayingthatnationalregulations CJEU. Thejudgesexplainedtheirdeci­ and wasgivenafavorablerulingbythe sold. Thecompanyfiledanobjection law onspirits,theliqueurcouldnotbe tent didnotconformtotheGerman range. However, sincethealcoholcon­ Crème deCassisaspartofitsproduct market wantedtostartsellingFrench blackcurrant liqueur. A German super­ nal, sincethesubjectofdisputewas 1970s. The casemayat first sound ba­ ing inthisrespectattheendof Justice (CJEU)passedanimportantrul­ details centrally. TheEuropeanCourt of forthesinglemarkettoregulate essary text istowhatextentitactuallynec­ sation mightbeanobstacle.” drawal orclaimsfordamagecompen­ different periodsfortherightofwith­ tection, forexample,theeconomy, tions upwards were forconsumer pro­ look atit.Asimportantasthedevia­ “It’s aquestionfromwhichangleyou Schmitt cancertainlyunderstandwhy: for morestringentnationalstandards. anything butsupportiveofderogations benchmark.” of theday, theloweststandardsets the bottom;inotherwords,atend “In general,thereistheriskofaraceto on thesmallestcommondenominator: that ariseswhenagrouphastoagree legislation: “A certain alcohol content set new standards for the alignment of MaxPlanckResearch 1 MaxPlanckResearch This wasnottheonlyruling with Philipp Schmittsaysthattheso One important question in this con­ Today, theEuropeanCommissionis Cassis-de-Dijon judgment of 1979 judgment of1979 | 19 - ­ are studyingthisinstitution’s past,and pean CourtofJustice.Heand histeam of the Euro­ has focused on the history acted ultravires. way overtheyears,andinso doinghas tice has consciously acted in a political critical ofthefactthatCourtJus­ Union ofdisparity”,page30).Theyare scientists and sociologists (seealso“The demic arena,particularlybypolitical as beingatrisk,butalsofromtheaca­ ticians whoseetheirnationalinterests cism has been voiced not only by poli­ tion” – a role that is contentious. Criti ­ considered tobethe“engineofintegra market inEurope.Fordecades,itwas facilitated theadvanceofsingle on the concept of the European Community of Law (below from left). from (below Law of Community European the of concept the on focusing is Klünder Thorben and harmonization, minimum of development the researching is Schmitt Philipp while Compromise, Luxembourg the after veto the studying private is Bajon Philip European law. to relating issues on working is left) (above Jarass Insa history. its and Union European the studies right) (above Vogenauer Stefan by headed team the investigation: Joint In hisresearch, StefanVogenauer ­ cols andotherwrittendocuments,but not onlywithreferencetofiles,proto­ fore no political role, no activism, no applying thelaw–thatthere wasthere viewees insistthattheCJEU wasonly together withacolleague.“Many inter conducting some of theseinterviews cording toPhilipBajon,who hasbeen by theCourt.Theanswersdiffer, ac lates tothepossiblepoliticalroleplayed with theofficialwrittenrecords. past, and are comparing their memories cials whousedtoworkthereinthe and high questioning judges,AdvocatesGeneral theyare pilot project.Ininterviews, in a also by recording its oral history One question in their interviews re­ One questionintheirinterviews - ranking administrativeoffi­ ­ ­ ­

Photos: Christiane Birr (2) Photos: Christiane Birr (2) what became known as “Eurosclerosis”, what becameknownas“Eurosclerosis”, 1970s, thelargenumberofvetoes ledto in theCouncilofMinisters. During the it inordertoblockmajority decisions room formaneuverwhenthey invoked political deal, since it gave them more were happytoacceptaninformal,more came European law. The governments Luxembourg Compromiseneverbe not definedingreaterdetail, and the at stake.These“nationalinterests”were decision when“nationalinterests”were state could veto a majority by every bers negotiatedanarrangementwhere- cy” toanend.Atthattime,themem- Charles deGaulle’s “emptychairpoli- This wastheagreementthatbrought embourg Compromisewasoftenused. day justastheywereinthepast. defense oftheirnationalinterests–to- Ministers are often vehement in their state andgovernmentintheCouncilof fore notsurprisingthattheheadsof expect politicianstodefend.Itisthere- compromising positionsthatcitizens there arestrong,ultimatelyoftenun nation, an exampleofhowinevery For Vogenauer, thepurityregulationis PUT ASTOP TO THE DEVELOPMENT NO ATTEMPT WAS EVERMADE TO it’s justthatno-onebuysit.” with the purity regulation standards; has notbeenbrewedinaccordance probably possible to purchase beer that well abroad. And here in Germany, it’s about this any more. German beer sells truly traumatic.Today, no-onetalks turned ourpurityregulation.’Thatwas just cameinfromBrusselsandover the Germanpublicsaid:‘Thesepeople example: “Thatwasthefirsttimethat regulation on thepurity of beer as an cites the ruling on the 1987 German lations wereaffected.StefanVogenauer ularly when traditional national regu- reactions in thememberstates, partic- Justice oftentriggeredfierce emotional of itsrole,judgmentsbytheCourt litical one.” that itsrolewasoccasionallyalsoapo- only a small number of people who say room formaneuverinvolved.Thereare Regardless ofitsownunderstanding In the1970sinparticular, theLux- - - - The arguments put forward inthede- The argumentsputforward already beingpublishedinthepress.” that time, various Brexit scenarios were sequences thatthisentailed.Evenat ty,” Bajonexplains,“withallthecon- an enormousblowtotheirsovereign- of the UK.“The British regarded this as es wereapprovedwithouttheconsent too farfortheotherstates,andpric al uponbudgetconcessions.Thiswent common agriculturalpricescondition- the Britishhadmadetheirsupportfor its attempttoblockavote.Atthattime, the UnitedKingdomwasoutvotedin did soinspectacularfashion.In1982, member tovetoadecisionfail,andit of theprocessEuropeanintegration.” pression thattheywerestillincontrol ate. “Itgavethegovernmentsim- and makeiteasierforthemtocooper- a toolusedtobringthecriticsonboard history.” He concludes that the veto was ment or even to turn back the clock of the CJEU,toputastopdevelop- ever madetolimitthecompetencesof tions: “Evenso,nomajorattemptwas therefore workinginoppositedirec jon, the legal and political spheres were mental importance.AccordingtoBa- degree withrulingsthatwereoffunda- of Europeanintegrationtoasignificant Court ofJusticefacilitatedtheadvance period ofEurosclerosis,theEuropean during the1970s,precisely and itsapplication.Itisnoticeablethat study oftheLuxembourgCompromise ture begantochange. onwards thatthedecision-makingcul- sions oftheTreaties fromthemid-1980s icies. Itwasonlywiththemajorrevi an extensiveblockadeofEuropeanpol-

l l l SUMMARY Only oncedidanattemptbya Philip Bajon has conducted a close Philip Bajonhasconductedaclose    to give up their national self-determination. national their up give to unwilling also are states the However, standardization. demands market internal An informal veto option, which was frequently used from the mid the from used frequently was which option, veto informal An the beginning: the from tension of asource been has unification European control of the increasing degree of integration. of degree increasing the of control mid- Compromises such as those that take the form of minimum standards with national with standards minimum of form the take that those as such Compromises derogations have made it easier for European states to grow together in the past. the in together grow to states European for easier it made have derogations 1980 s, left national governments under the impression that they were still in in still were they that impression the under governments national left s, - - - example of Brexit shows that the British example of Brexit showsthattheBritish balance here,”Vogenauer stresses.“The “It isn’t always easytofindtheright sumer andenvironmentalprotection? system, concerning,forexample,con- the valuesunderlyingmynationallegal tions withoutgivingupmyidentityor and lessbureaucracyforpatentapplica- to themarket,lowproductioncosts, that standardizationbrings,withaccess nity: howcanIenjoyallthebenefits it wasfoundedasaneconomiccommu surrounded the European Union since mately reflectsthetensionsthathave ulations intheirowncountry. desire to have full sovereignty over reg- the fearoflossautonomyand bate werethesameasthoseusedtoday: for Europetogrowclosertogether. crisisasanopportunity who sawevery pean Commission,Walter Hallstein, spirit ofthefirstPresidentEuro- –entirelyinthe major stepforward other memberstatesandfacilitatea ble thatBrexitwillweldtogetherthe rian’s opinion,itisbyallmeanspossi- picture wasdifferent.Inthelegalhisto voted infavorofexitingtheEU, the EU.BeforeUnitedKingdom in any member state would vote against rope showthat,atpresent,nomajority inEu side toBrexit.Currentsurveys to havebothatthesametime.” tions andstandards.Butit’s impossible full sovereigntyovertheirownregula- market, while on the other maintaining hand, they want full access to the single want tosquarethecircle. Ontheone (inGerman)

For StefanVogenauer, Brexitulti- For Vogenauer, thereisapositive www.mpg.de/podcasts/eur 1 | MaxPlanckResearch 19MaxPlanckResearch - 1960 FOCUS_Europe s until the the s until co ­ opa mmon mmon

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