Furio Ferraresi - 30/07/2012

     It’s all very well talking of “ceding sovereignty”, but first we need to be clear who possesses the sovereign right which is being made over, and above all whether the new wielder of it can be considered “sovereign” as much as the old incumbent. Legal formulae apart, however, the decision to be taken on 12th September by the German Constitutional Court is a crucial one: it needs to ponder certain appeals – for example, by the radical left-wing movement Die Linke against the permanent State-Rescue Fund (ESM) and the European fiscal compact – on the outcome of which hangs the safety of the Euro. More important still, if offers a chance to take a new look at the issue of European governance vis-à-vis nation-State sovereignty, and ponder again whether we want a smoothly-running techno-Europe, or a political structure sturdy enough to query the alleged independence of markets and the economy.

     Let us first be clear about one thing: the Karlsruhe judges are not holding the EU in check over the future of the Euro; they are performing their essential task as a watchdog over the constitutionality of certain laws within basic German Law. This by now lengthy tradition called the judges into play over the Treaties of Maastricht and Lisbon, and more recently concerning Berlin’s participation in the various state bail-out funds that have been created. They are not overriding the Bundestag, which has already passed such measures by an ample majority, but are safeguarding the powers of that Parliament, one of which is its own financial independence which may be jeopardised if Germany’s commitment to the State-Rescue Fund were to exceed a certain limit.

     There is also the issue of ensuring democracy, which is so intimately bound up with nation-State sovereignty. What the German judges have been vainly trying to point out for so long is that, failing a European Constitution expressing the constituent power of the “European people”, no-one can claim the last word in sovereignty except the European nation-States and the “people” that are named in their Constitutions. To revert to the root of our argument, the sovereignty that has been yielded in approving these and other past treaties has not been transferred to a superior “third party” whom the people voluntarily acknowledge as authorised to act on their behalf, but to technical rather than political bodies (the famous ‘troika’ is one such) which lack democratic legitimacy and act on behalf of governments; and their decisions, even when authorised by those national Parliaments, may undermine the powers of those same Parliaments and hence violate the constitutions of the various countries – those constitutions that still underpin the legal structure and are superordinate to ordinary law.

     This means that the Karlsruhe judges should not be lumped with the Eurosceptics: they are not playing a political role but simply pointing out the mortal contradiction in a Union which is forced to take grave emergency measures when it still lacks the political cohesion and the constitutional as well as political legitimacy to do so. The fact is that today’s EU is not so much a United States of Europe as a civil war between rich virtuous northern states and poor discredited southern states. Here the Constitutional Court is cast reluctantly in the role of stop-gap to make good the shortcomings of the European edifice in terms of political integration and democratic legitimacy. In other words, the Court is defending, not some abstract formalistic concept of legality, but a principle involving substantial and constituent democratic legitimacy – the very thing that could or should galvanise the future people of Europe to action.

      The Court is perforce limited to a national level, but tomorrow’s people, having outgrown the confines of their national communities, will have to take a basic decision as to their own political existence by an act of constituent power. In such a way alone could the EU become something different from an agglomerate of nations, devoid of legitimacy in its own right and founded exclusively on asymmetrical interests (big powers and little powers) disguised as an “intergovernmental method” of “two-speed integration”. While we actually unlikely to get a ruling such as to jeopardise the survival of the Euro, it may very well set limits to Germany’s participation in the State-Rescue Fund – and not in the name of some anti-Mediterranean grudge, but simply to preserve the Parliament’s constitutional powers and hence the sovereignty of the people.

     That might have two beneficial effects: a radical tabling of the issue of Europe’s political union as the sine qua non of all economic and political coordination without which we collapse: secondly, it may challenge the standard line of argument, viz. that the anti-crisis measures being dished out by the European institutions are objectively born of emergency, as though they were prompted by economic and technical criteria of efficiency inherent in economic governance, and not political decisions. The real point is that our present EU crisis is not economic but political and can only be transcended if we use the crisis to redefine the political sovereignty of Europe, transforming might into legitimate power and the participants in that power into equal members of a legally and politically federal community.

     The judges of the German court are prompting us to this urgent transformation; as leading nation of the Eurozone, it behoves Germany to shoulder the responsibility here. Who knows? the Karlsruhe ruling may force the stakeholders of European politics – national authorities, the Berlin government, the citizens of Europe – to take on board the radical need to change the legal and political profile of the EU into a federal structure and to challenge the political and democratic implications of economic decisions that are being foisted on us as technical imperatives. If it does, it will be a useful blow of the pickaxe on a building that is already tottering.

Furio Ferraresi