Sun. Nov 28th, 2021


Whatever happened Michel barnier? As head of the EU Brexit negotiating team, the patrician Frenchman became known for his insistence that the EU should never deviate from its core principles – including the rule of European law and the free movement of people.

Now Brexit is over and Barnier has moved on. He is eligible for the presidency of France and has adopted many of the ideas he once rejected. Authority of EU law? Barnier now has his doubts. Immigration? Barnier calls for a moratorium of up to five years. The European ideal? Barnier warns that Germany has become too powerful within the EU.

One possible explanation for this curious full face is that the former EU Commissioner has deeply considered the Brexit negotiations and decided that the Brexiters have a point. An alternative theory is that Barnier reflected deeply on his own ambition to be president of France – and decided that the shortest route to power involved a sharp right turn, followed by a rapid reversal of his own principles.

It is possible that a very good lawyer could make the statements of the two Barniers sound consistent. His current demand for a moratorium on immigration, for example, only applies to arrivals from outside the EU. But one of his former closest colleagues in Brussels tells me: “What he is saying now, for example about the European Convention on Human Rights, is clearly different from what he said during the Brexit negotiations. “

The Barnier story is about more than the cynicism of one man. It says something important about politics in Europe. The setback against Brussels is not limited to France. It appears in various forms throughout the EU – from Warsaw to Budapest to the German Constitutional Court in Karlsruhe. The supremacy of EU law, a principle that was established in the 1960s and which is fundamental to the European project, is increasingly being challenged.

One key reason for these challenges is that the EU has expanded its powers to policy areas that were once the core of the nation state: borders, budgets, currency and civil rights. As a result, many politicians are scrambling to accept European rule of law on issues such as immigration, which are deeply controversial at home. This problem is exacerbated by the fact that the EU club now has 27 members – making it harder to agree on a common rulebook that suits everyone.

Over the past 20 years, the EU has been making a rolling argument about where sovereignty and power are best located: Brussels or the nation-states? It was an issue when French and Dutch voters reject a proposed EU constitution (advocated by Barnier) in 2005 because it was too integrationist. The power of the EU to demand change in a nation-state has also been controversial throughout Greek debt crisis.

Sovereignty was the central issue in the Brexit campaign in Britain in 2016 – highlighted by the Leave campaign’s winning slogan: “Take back control”. Border control, a crucial issue for the Brexiters, was also central to the arguments of Eurosceptics in Hungary, Poland and France.

The fact that Brexit is widely regarded as a failed project means that no other country is currently considering leaving the EU. But the question of the powers of Brussels and the supremacy of EU law is emerging in other guises. In 2020, the German constitutional court rule that the European Central Bank’s policy of buying the bonds of EU countries was illegal, indicating that German judges dominate their European counterparts. Although Karlsruhe eventually retreated (as it tends to), his ruling encouraged the Eurosceptic governments in Poland and Hungary.

The Polish Constitutional Court – at the insistence of the government in Warsaw – recently ruled that Poland’s constitution violates EU law. Unlike the Germans, the Pole was prepared to escalate the conflict to a complete confrontation with Brussels.

The case is complicated by the fact that the Polish government is acting in bad faith in many respects. The ultra-conservative Law and Justice Party has packed the court with its own loyalists – something that Brussels sees as a threat to the rule of law in Poland. The issues of the primacy of EU law and the independence of the Polish judiciary have become mixed – although logically these are clear questions.

With Brussels currently threatening to cut off the flow of funds to Warsaw, there is a good chance that the European Commission and the Polish government will eventually reach a compromise. But, as the French election illustrates, the broader question of whether too much power now resides in Brussels will come up in other forms.

In the past, it has always been assumed that power struggles between Brussels and member states would generally be resolved in favor of Brussels. “Ever closer union” seemed inevitable.

The strategic and economic arguments for deeper European integration remain strong. But politics seem less and less favorable. Eurosceptic uprisings in Britain and Poland are one thing. But when Barnier, the epitome of the “good European”, turns into a nationalist the political ground is clearly shifting. The next constitutional settlement in the EU can benefit nations, not Brussels.

gideon.rachman@ft.com



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