Constructing the EU's Political Identity 3031174062, 9783031174063

Table of contents :
Contents
1 Constructing the EU’s political identity in policy making
Abstract
Introduction
Analysing the EU’s political identity
Studying the EU’s political identity in policy making
Findings
Conclusions
Acknowledgements
References
2 Constructing and de-constructing the European political identity: the contradictory logic of the EU’s institutional system
Abstract
Introduction
Political identity and institutional system
Supranational institutions and the European political identity
Intergovernmentalism and the resurgence of nationalism
Conclusion
References
3 Affirming Europe with trade: deal negotiations and the making of a political identity
Abstract
The Commission and the EU’s political identity
The EU as a trade ‘Actor’: the broader literature
Food, earth, and tradition: protecting Europe at the CETA and TTIP negotiations
Cutting edge and efficient: the EU Commission and the pursuit of the internal digital single market
First pillar: access to digital market
Second pillar: the right business environment
Third pillar: growth potential
Conclusion
References
4 Transforming identity in international society: the potential and failure of European integration
Abstract
Limits of transformation: revisiting Mitrany and Bull
Regional order, identity and border formation in international society
Case I: Cyprus
Case II: Ukraine
Identity and the transformative challenge for EU external policy
References
5 Do central bankers dream of political union? From epistemic community to common identity
Abstract
Splendid isolation
Unconventional monetary policy
Financial market supervision
Responsibility and accountability
A strategically constructivist solution
References
6 The EU’s legal identities and the Court of Justice of the EU
Abstract
Introduction
Legal identity across areas: does the Court still trigger ‘integration through law’?
What do we understand by ‘integration through law’?
The EU’s ‘integration through law’ identity: challenged but resilient
Legal identity in different policy areas: is the CJEU market oriented?
Free movement and the internal market as core notions of EU’s legal identity
Social and health policies through and beyond market integration
The protection of fundamental rights
Conclusion
Acknowledgements
References
7 Common market, normative power or super-state? Conflicting political identities in EU asylum and immigration policy
Abstract
Political identity and immigration policy
Contests over values and identities in EU asylummigration policies
The statist identity: community-building and internal security
The ‘normative power’ identity: image in the world and universal human rights
The ‘market power’ identity: economic competitiveness and the quest for labour
Conclusion
Acknowledgements
References
8 Direct and market governance paths for the creation of an EU political identity: cultural heritage policy
Abstract
Introduction
Cultural heritage, EU cultural policy and political identity building
Directly promoting an EU identity through cultural heritage
The ‘unity in diversity’ strategy
Subcase of policies to develop an EU identity: Creating EU public symbols and labels
Governing cultural heritage and markets
Limiting, linking and creating economic markets in cultural heritage
Subcase study of markets and heritage: regulation of cross-border trade in artistic objects
Conclusion: the EU’s path to political identity in EU cultural heritage policy
Acknowledgements
References
9 Understanding the identity of a policy field: the European Commission and liberal modernization in the domain of labour and social policy
Abstract
The identitarian turn in EU studies
Advancing labour and social policy via policy domain identity: the 1990s
Policy domain identity in the 2000s: the Lisbon Agenda
The 2010s: pushback against the liberal modernization image
Conclusion
References
10 Comment: the EU and European identity
References
11 EU political identity, integration and top-down analyses: a reply to Neil Fligstein
Abstract
Identity, integration and cross-domain comparison
Citizens, social groups and EU institutions in identity building
The EU as a state
References
12
Correction to: Constructing the EU’sPolitical Identity
Correction to: S. Saurugger and M. Thatcher (eds.), Constructing the EU's Political Identity, https://doi.org/10.1007/978-3-031-17407-0

Citation preview

Constructing the EU‘s Political Identity Edited by Sabine Saurugger Mark Thatcher

Constructing the EU’s Political Identity

Sabine Saurugger Mark Thatcher •

Editors

Constructing the EU’s Political Identity

Previously published in Comparative European Politics, “Constructing the EU’s political identity”, Volume 17, Issue 4, August 2019

Editors Sabine Saurugger Sciences Po Grenoble Institut d’Etudes Politiques Grenoble, France

Mark Thatcher Department of Political Science Luiss University Rome Rome, Italy

ISBN 978-3-031-17406-3 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022, corrected publication 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

The original version of the book was revised: The affiliation of Mark Thatcher has been updated. The correction to the book is available at https://doi.org/10.1007/ 978-3-031-17407-0_12

Contents

Constructing the EU’s political identity in policy making . . . . . . . . . . . Sabine Saurugger and Mark Thatcher

1

Constructing and de-constructing the European political identity: the contradictory logic of the EU’s institutional system . . . . . . . . . . . . . Sergio Fabbrini

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Affirming Europe with trade: deal negotiations and the making of a political identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Francesco Duina and Ezekiel Smith

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Transforming identity in international society: the potential and failure of European integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thomas Diez

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Do central bankers dream of political union? From epistemic community to common identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Erik Jones

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The EU’s legal identities and the Court of Justice of the EU . . . . . . . . . Sabine Saurugger and Fabien Terpan

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Common market, normative power or super-state? Conflicting political identities in EU asylum and immigration policy . . . . . . . . . . . . 109 Sandra Lavenex Direct and market governance paths for the creation of an EU political identity: cultural heritage policy . . . . . . . . . . . . . . . . 127 Mark Thatcher Understanding the identity of a policy field: the European Commission and liberal modernization in the domain of labour and social policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Georg Menz

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Contents

Comment: the EU and European identity . . . . . . . . . . . . . . . . . . . . . . . 161 Neil Fligstein EU Political identity, integration and top-down analyses: a reply to Neil Fligstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Sabine Saurugger and Mark Thatcher Correction to: Constructing the EU’s Political Identity . . . . . . . . . . . . . Sabine Saurugger and Mark Thatcher

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Comparative European Politics (2019) 17:461–476 https://doi.org/10.1057/s41295-019-00169-2 ORIGINAL ARTICLE

Constructing the EU’s political identity in policy making Sabine Saurugger1 · Mark Thatcher2 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract Questions of identity have returned to the centre of political debates in Europe. A key issue is that while the EU has greatly expanded its powers in key policy domains that traditionally have been the preserve of nation states, its political identity remains weak. The special issue examines the construction of the EU’s political identity (or identities), variations in its strength and the nature of its content. Drawing on studies both on European nation-state formation and on the EU’s identity, we take a topdown approach and analyse how EU institutions in different major policy domains have themselves sought to create political identity through policy making. We define the construction of EU political identity and set out empirically applicable indicators to assess political identity in policy making. We analyse the construction of identity through a process-oriented approach that explicitly includes contestation and the existence of rival political identities. Comparing across policy domains, we suggest that the ability of EU institutions to construct an EU political identity has been limited not only by existing national identities but also by the coexistence of rival EU political identities within policy domains. Hence, it has been difficult for EU institutions to establish a strong identity, with identity being strongest where there are clear external alternatives and limited rival identities within the EU. Keywords Political identity · EU · Policy

The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The correction to the chapter is available at 10.1007/978-3-031-17407-0_12 * Sabine Saurugger [email protected] Mark Thatcher [email protected]; [email protected] 1

Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, 38000 Grenoble, France

2

Department of Political Science, Luiss University Rome, Rome, Italy

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Introduction Identity has returned to the centre stage of politics in Europe. A key question concerns the EU’s political identity. The special issue starts with a puzzle: on the one hand, the EU has greatly expanded its policy responsibilities and powers and indeed has acquired many ‘state-like’ features—a common currency, system of law with a supreme court, myths and symbols, political system, external borders and wide legal powers over other domains traditionally the preserve of nation states, from monetary policy to welfare, culture and immigration. On the other hand, the EU’s political identity has failed to match its increased powers and, at the same time, has become increasingly contested, as questions arise about its content, coherence and conflicts with national identities. These issues are increasingly at the core of political debates and crises as the EU’s supposed lack of a political identity is used to attack its lack of legitimacy or ability to create a political project that matches its legal and economic powers. Academically, the EU’s identity is generally analysed through the processes whereby citizens identify with the EU and the strength of such identification. The study of citizen identification is useful but faces preliminary issues of the extent to which the EU has a coherent and well-formed political identity with which citizens can identify and the content of that identity. Our interest lies with these latter matters. Our central question is: to what extent, how and why have EU organisations and institutions created an EU political identity and what is the content of that identity? In particular, we focus on the construction of the EU’s political identity by EU organisations. Drawing on studies on both the construction of national identities and on the EU as a ‘state’, we take a topdown approach by looking at how EU institutions (i.e. organisations), such as the Commission, European Court of Justice or European Parliament and Council, have created (or failed to create) an EU identity in key policy domains. We examine EU identity construction through the policy-making process. Thus, we attempt to define political identity and find major indicators that can be studied empirically in looking at EU policy making. We then develop claims both through process tracing and by variations in identity construction over time and especially across domains. We explicitly incorporate the possibility that there can be several identities in a domain and contestation about which should become dominant. This introduction begins by discussing the study of EU political identity, delineating our approach from those based on identification by individuals and setting out its inspiration from studies of the construction of national state identities in Europe and that on the EU more specifically. We then define political identity and offer indicators and methods for studying it within the policy-making process, before summarising our central findings and ending with wider claims for further investigation.

Analysing the EU’s political identity The literature on political identity is vast (for a good review, see Abdelal et  al. 2009). The concept is amorphous, contested and multifaceted. One approach is to focus on the beliefs and attributes of individuals and their feelings of belonging to Reprinted from the journal

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a group. For example, in terms of general definitions, James Fearon distinguishes between personal identity and social identity, with the latter being a ‘social category, a set of persons marked by a label and distinguished by rules deciding membership and (alleged) characteristic features or attributes’ (Fearon 1999: p. 2), while Rogers Brubaker and Frederick Cooper (2000) offer three alternative views of social identity, namely identification/categorisation; individual self-understanding; and commonality/connectedness/groupness. After reviewing the literature, Abdelal et al. (2001) (cf Abdelal et  al. 2009) offer three different understandings of identity: an indirect one, namely the way actors understand the world; a theory of action, based on the distinction between an in-group and an out-group; role theory in which the behaviour of actors (or attempts to act) is more or less consistent with actors’ role expectations flowing from their identities which provide socially appropriate roles that actors perform. The literature on identification with the EU is also extensive and long standing, going back to the earliest debates about neo-functionalism and a transfer of identity from the national to the European level (for a good overview, see Sassatelli 2009: ch 1). It has enjoyed considerable expansion in recent years (e.g. Checkel and Katzenstein 2009; Risse 2010; Bruter 2005, special issue International Organization 2005). The most prominent studies look at individuals by examining citizen identification, often using Eurobarometer, polling results or focus groups that measure the beliefs and behaviour of European citizens. They suggest that a European identity, whether it is political or social, emerges from processes of creating a shared identity at the level of citizens (Bruter 2003, 2005; Diez Medrano 2003; Katzenstein and Checkel 2009; Risse 2010; Duchesne et al. 2013; van Ingelgom 2014; Hooghe et al. 2017). Neil Fligstein (2008), for instance, adopts the premise that a specific form of European society is in the process of emerging via horizontal and vertical relationships between citizens and elites. He argues that this will doubtless lead to a socially divided Europe, where those who participate more in European integration will feel more European than those who do not. The literature on political identity is helpful for a study of the EU by underlining that identity is constructed through action and the development of social categories. Equally, that on citizen identification in Europe is valuable for assessing mass views of the EU and the electoral context within which actors operate. However, given its focus on citizens, it does not concentrate on the role of elite policy makers in constructing an EU political identity with which citizens can identify. The processes of making EU policies, their content and their presentation are likely to influence the extent and content of identity, which in turn may well influence identification by citizens. This relates to identity being created by top-level institutions rather than just emerging organically from citizens. Here, we therefore take an alternative perspective, in looking at the construction of the EU’s political identity by one group of collective elite actors, namely EU organisations in policy making. Our approach draws inspiration from work on ‘state building’ and nations and nationalism in Europe. The literature makes a very useful distinction between nation, based on feelings of belonging, and a state (e.g., Smith 1991; Guibernau 1999). The two can exist or develop at different times. A nation can precede a state—for instance, Italy had strong nationalist movements well before the 3

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modern Italian state was created in the late nineteenth century. But crucially for our purposes, a state can precede a nation or indeed exist without it or contain several nations or having movements that seek to create new states. Indeed, states can exist despite many great internal diversities—a classic study by Eugene Weber on France argued that in the late-nineteenth-century and early-twentieth-century organisations such as the judiciary, education system, army and church (aided by economic and technological changes) ‘transformed peasants into Frenchmen’ (Weber 1976). Indeed, an important literature on nation-state building underlines the role of institutions such as the church, the army or the educational system in building national identities (Tilly 1975; Poggi 1978; Skowronek 1982; Elias 1982; Evans et al. 1985; Breuilly 1993; Smith 1999). Studies show how these institutions acted not only through coercion but also by creating symbols, myths and ‘invented traditions’ (Hobsbawm and Ranger 1983) in order  to create ‘imagined communities’ (Anderson 2006) that came over time to constitute the publicly stated and collectively shared political identities of nations. State organisations can create identity over time . They can increase their role at certain key periods, notably in times of crisis such as war, as well as those of rapid economic and technological development. But these processes were not without conflicts. Studies on national identity building have also indicated how identity can be contested—collective sharing does not mean that everyone accepts or shares the same identity and that its construction can be highly political, as actors press alternative identities as part of wider political struggles. Studies on the EU build on this research and point to the importance of organisations that create an identity. The literature is very considerable and diverse, ranging from discussions of how a ‘European’ identity fits with other identities, especially national and regional  ones, to the problems of constructing an EU identity or to detailed ethnographic studies of specific groups (for just a few examples, see Risse 2004, 2010; Smith 1992, 1995; Foret 2008; Favell 2011). Much work has focused on culture and EU building a ‘cultural identity’. Thus, for instance, recently, Kathleen McNamara has underlined that historically political authorities have used carefully crafted symbols and practices to create a cultural foundation for rule, most notably in the modern nation state and argued that the EU has sought to create a ‘critical infrastructure’ of culture to support the expansion of its political authority (McNamara 2015). Oriane Calligaro (2013) has studied how ‘entrepreneurs of Europeanness’, both within and especially outside EU institutions, have developed representations of the European project. Vincent della Sala has argued that the EU has created myths that are similar to those of nation states, such as those concerning its foundation and culture as well as exceptionalism (della Sala 2016). Considerable research has looked at how the EU creates symbols and seeks to develop a ‘taken-for-granted’ or ‘banal’ European identity (Cram 2009; Foret 2008; McNamara 2015). In the field of ‘culture’, efforts by EU institutions to create a European ‘cultural identity’ through visible symbols such as ‘cities of culture’, an EU passport and maps, as well as narratives in the form of histories and ‘memory’, have been studied (e.g. Sassatelli 2009; Shore 2000; Calligaro 2013; Delanty 1995). Other work has examined discourse and norms. Vivien Schmidt has argued that EU institutions such as the Commission and ECB are central to the definition and Reprinted from the journal

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operation of the EU, but that the lack of resonance of EU decision-making which is often dominated by economic issues with citizens and their limited participation in its decision-making creates ‘policies without politics’ (Schmidt 2006, 2009). She also suggests that there are at least four discourses about the EU’s identity: a pragmatic one in which the EU is a problem-solving entity; a normative one based on being a value-based community; a principles one in which the EU is a border-free rights-based post-national union; a strategic one in which the EU is a global actor that breaks out of traditional realpolitik (Schmidt 2009: p. 24). Equally, the role of norms in the EU’s development and power is at the core of work on ‘Normative Power Europe’, whereby the EU has been defined as an ‘ideational’ actor characterised by common principles and constituted as an ‘elite-driven, treaty-based, legal order’, so that its identity and behaviour are fundamentally based upon a set of common values such as peace, liberty, the rule of law, democracy, human rights, social solidarity, anti-discrimination, sustainable development and good governance, which are reflected in the rhetoric of its leaders (Manners 2002: p. 241; Manners 2002, 2006; Smith 2013; Meunier and Nicolaidis 2006). The studies on state creation of a political identity are highly relevant to our study. They show that even in countries used as exemplars of nation states such as France, political identities were constructed over time and despite features such as multiple languages and strong conflicts between social groups and geographical areas. They point to the roles that organisations with powers over key domains such as public order, education and the economy can play in building such identities. The work on the invention of traditions is particularly relevant to studies about the roles that EU organisations play in the construction of an EU policy identity. Equally, research showing that contestation and conflict have been a central aspect in the slow, and often incremental, emergence of national identities aids in providing a perspective when looking at the often acrimonious and/or slow development of the EU. At the same time, the studies on national identity construction need to be treated as a starting point and adapted and developed rather than simply ‘read across’ to the EU. While drawing on existing research on the development of national identity, which offers a valuable set of tools and claims, we are using as it a source of inspiration rather than seeking an exact replication—since we recognise that supranational political identity construction in the twenty-first century based on a union of states is likely to have important differences with national identity construction on the nineteenth century. Hence, for instance, McNamara (2015) suggests that the EU often ‘localises’ its symbols which thus have a national element. Moreover, ‘national identity’ is often a mythical and unrealistically high yardstick for identity, while the historical literature is itself the subject of intense academic debates. With respect to studies of EU identity, they too are immensely valuable. They underline the importance of identity being developed through action, which may be part of deliberate strategies by the EU to gain legitimacy (Sassatelli 2009; Shore 2000). Considerable discussion concerns identification with Europe, albeit using different methods than Eurobarometer citizen identification studies (notably qualitative and ethnographic) and theoretical frameworks (especially various forms of constructivist and interpretative approaches). They offer definitions—for instance, Sassatelli (2009: p. 5) usefully defines European cultural identity as having both 5

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individual and collective dimensions, namely a shared public and individual understanding of what it means to be European and then individual self-understanding of those meanings. We seek to build on these studies of EU identity. In particular, we seek to develop empirically applicable definitions of political identity (which may differ from cultural identity that is based in part on individual understandings, whereas we focus on the EU as a collective political body) and that link to the EU’s main activity which is policy making. We also seek empirically grounded explanatory factors or even hypotheses about when, how and why the EU does and does not develop a political identity. Moreover, recognising that there are different EU identities opens many questions about their coexistence and which prevail. Finally, while many of the studies on EU identity construction operate either at a detailed level, looking within specific organisations or sometimes policy domain, or else at very macro level across the EU as a whole, this leaves space for the meso-level analysis at the level of policy domains and ‘medium-level theorising’. Thus, drawing inspiration from work on nation building (while remaining sensitive to the differences between a nineteenth-century nation state) and on studies of EU identity construction, we examine key EU institutions in central policy domains, to see how they seek to construct political identity in their activities of policy making. Thus, we accept the important argument made in both general and specifically EU studies that identity is constructed through activities and roles. We look at whether, how and why institutions construct a political identity for the EU in setting policy aims, choices and criteria, throughout the policy process. Hence, the construction of a political identity includes announcing reasons rationales for policies, the policy aims followed by the legislative process and the production of policy documents as well as explanations for these. The activities may seem routine, but not only is policy making the central activity of the EU but also it involves both coercive tools and symbolic or discursive ones that articulate values. Studying policy making also allows us to look at the substantive content of an identity—as articulated by EU institutions. Hence, we examine the strategies and capacities of these institutions in presenting, explaining and interpreting their policy decisions. We also seek to contribute to the literature on EU identity by focusing on particular EU institutions (taken here to mean EU-level organisations) and in highlighting major explanatory factors and causal processes in EU policy making. We operate at the meso-level of policy domains, seeking to compare domains to see how their features affect EU identity creation. The following section presents the indicators used in the special issues analysis and develops preliminary hypotheses. We are particularly interested in rival identities in domains—which ones exist and why, and then which are stronger, when and why.

Studying the EU’s political identity in policy making Given our focus on top-down identity construction by EU institutions in policy making, we now face three related questions. How do we define the EU’s ‘political identity’ in ways that can be applied empirically in the policy process? What processes Reprinted from the journal

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and mechanisms in policy making do we envisage as possible means of its construction? How can and do we study it empirically in policy making? Laura Cram (2009), drawing on Tönnies (1955), underlines that the EU’s political identity involves belonging to a political community (Gemeinschaft) as distinct from a functional society (Gesellschaft). As the literature on nation-state building underlines, constructing such a community involves political institutions that articulate values publicly—i.e. public communication and discourse that offer narratives, symbols and myths—so that they can be shared (cf. Foret 2008; Cram 2009; Schmidt 2009). But it also requires a political content or ‘values’, so the EU’s identity refers to more than just an interstate agreement for economic benefits (Foret and Calligaro 2018). Values can be seen as building blocks of identity. We refer to values in this special issue as an understanding that is ‘produced by a social convention and asserted by an institution’ (Foret and Calligaro 2018: p. xx). As such, conflicts and controversies lead to situations in which specific values are questioned, and can then be defined and asserted. Equally, establishing a hierarchy by claiming that such values take priority over others—e.g. that they are claimed to be ‘fundamental’, unalterable or at least enjoy precedence over others—is essential in an identity and separating it from other, lower ranked aims. Indeed, Calligaro distinguishes ‘Europeanness’, which she defines as ‘the presentation of the European project capable of arousing the citizens’ feelings of belong’ (a definition that itself separates representations of Europe from actual citizen identification), from European identity which she says has more fixed characteristics (Calligaro 2013: p. 8, 7); identity does indeed need to have claims to endure over time and to be fundamental. Moreover, ‘values’ need to be shared, as identity has an internal dimension across the EU. Finally, being distinct involves an external dimension or differentiation from other polities, as the studies both on nation-state formation and on the EU as a ‘normative power’ underline; such differentiation can be vis-à-vis EU member states or other European polities or organisations or non-European polities. (Although this does not mean that such identity must be exclusive—it may well be possible to feel a sense of belonging to both the EU and other polities, just as one can belong to both a nation and a subnational unit or social group.) Hence, we define EU ‘political identity’ as the articulation of political values that are claimed to be: • Fundamental—i.e. unalterable and take precedence over others • Shared across the EU—i.e. an internal dimension • Distinct, differing from other polities—i.e. an external dimension (such differen-

tiation can be from EU member states or other European polities or organisations or non-European polities). How can such an articulation be found empirically in the EU? Given that the EU is very much a ‘policy state’ (Richardson 2012), we focus on its policy making. More specifically, we seek to identify the EU’s political identity by looking at the articulation of values and claims made for them. This may occur in many ways, including: stated policy aims and priorities, the paradigms/frameworks/models used in making or justifying decisions, symbols and myths, and claims of community put forward 7

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by EU institutions. These are located in institutions’ statements and discourse, explanations of policy choices or in legal norms, but also the wording of legislation and decisions. Hence, we can ask questions such as: Are a coherent set of aims and criteria for decisions put forward or many contradictory ones? Which aims are repeated and which not? Which aims are set out as fundamental and which are presented as subordinate? Which are set out as being ‘shared’ across Europe and how is such sharing presented? The political identity of a policy can differ from the content of a policy, which can be hidden or differ from public claims made for it or the values that led to its adoption. Thus, for instance, in looking at EU foreign policy, Hebel and Lenz (2016) suggest that the link between EU identity and policy has two steps: identity construction, in which a collective EU identity is formed from the constituent norms of its members; identity operationalisation, in which they formulate and apply regulative norms. This offers a useful division (although we may debate whether a collective European identity is only composed of the norms of its members).  We are most interested in identity construction. The articles of this special issue share the same process-oriented approach, studying the values put forward by EU institutions. Such a process does not take place in a vacuum, since the construction of identity can be observed inside and through the interactions taking place inside the EU institution and with external actors such as non-EU institutions, non-governmental organisations and the media. We see political identity as being constructed by actors, who pursue their own aims, which may range from increasing their power to legitimating policies, shifting blame or deepening European integration. Identity construction can be an incremental, non-strategic act or a conscious one (to construct identity strategically). Multiple causal mechanisms are possible—e.g. ranging from cost–benefit calculation to constructivist/socialisation mechanisms such as role playing and normative suasion (cf. Checkel 2005). Indeed, our approach draws on or is similar to strategic constructivism in looking at the strategies, resources and constraints of actors in constructing an EU political identity. This does not mean that we see actors as having an overall plan but does mean that we focus on their directed actions concerning the creation of political norms that can construct an EU political identity. (We can of course also include unintended effects of their efforts, but the starting point is their behaviour as they seek to create a political identity.) We adopt a specifically actor-centred perspective, insisting that although actors are embedded in cognitive frames they are equally able to develop a strategy that will help them to achieve their goal (McNamara 1998; Parsons 2002; Blyth 2002; Hay and Rosamond 2002; Jabko 2006; Hay 2004, 2006; Zeitlin and Vanhercke 2018; for a critical view, see Bell 2011). From this perspective, cognitive frames do not solely constitute the environment in which actors are embedded (a constitutive logic), but are also tools, consciously used by these same actors to attain their goals (a causal logic) (Gofas and Hay 2010), in an environment in which power is unequally distributed amongst actors (Saurugger 2013, 2016). In terms of empirical coverage, we focus on the closest EU equivalents to those suggested by studies both of European and American state building, such as the European Commission, Court of Justice of the EU, European Council and European Parliament, who make policies in key domains. While accepting that Reprinted from the journal

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there are contrasting views and individuals ‘entrepreneurs’ within these organisations (cf Calligaro 2013), for our purposes, we treat them as actors who set out values in the policy-making process. In terms of time periods, although ‘identity’ has been an EU policy since the 1973 Declaration  on European Identity made at the European Summit of 14–15 December 1973 at Copenhagen, we focus on recent years, when identity has become part of wider responses to economic, financial and political crises which have called into question membership of the EU, the euro or the goal of ‘ever closer union’. We compare across different domains that are usually central to national political identities (without claiming that the models of a Western nation state can just be read across to the EU)—i.e. • Constitutional identities—e.g. the articulation of the right allocation of pow-

• • • • •

ers between different levels of government and also the overall norms of the polity Judicial identity—e.g. the role and limits of the power of the judiciary, especially over politics Cultural identity—the ‘common heritage’ and past of the polity External identity—the borders of the polity and whom is included and who is a ‘foreigner’, who is a migrant, immigrant, etc. Macroeconomic policy—e.g. the allocation of fiscal and monetary powers, the aims of the central bank and the paradigm used for governing an economy. Social or welfare identity—the rights and protections that workers and citizens can expect.

We explicitly include conflict, since one of the basic assumptions of this special issue is that political identity is contested—within EU organisations, among EU organisations and then by other non-EU actors. EU organisations can face opposition to the creation of an EU identity in a domain. Equally, there can be, and often are, rival political identities—about EU aims (e.g. for constitutions, between a union des patries and an ever closer union), models (e.g. how monetary policy should work and its relationship with national fiscal policy) or priorities (e.g. rights of workers versus those of capital). We examine how actors such as some national governments, or civil society actors, offer opposing identities, to those currently presented by EU institutions. Hence, contributors examine whether, to what extent and when EU has overcome opposition to create a political identity in a domain and if there are rival identities, which ones are pressed and which dominate. It may be useful to state briefly what we are not doing. As noted, we do not look at whether citizens actually identify with the political identity that EU organisations create. Equally, we do not seek to examine the effects of the EU’s identity on national identities (on this, see Cram 2009; Smith 1995). Nor do we study the internal identity of EU organisations, such as the views and norms of their staff in their dealings with each other or the role of individual entrepreneurs (for such studies, see, for example, Hooghe 2002; Kassim et al. 2013; Calligaro 2013). Equally, we do not look at the effects of the EU on national identities. While these are all important, space and focus put them beyond our reach. 9

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Findings The articles of this special issue approach these issues through three groups of studies. Contributions encompass a broad understanding of the EU’s internal and external political identity (Fabbrini 2019; Diez 2019) and then concentrate on specific European institutions in the construction of EU’s policy identities in various policy domains—external trade and internal single market through case studies of GMO foods and audiovisual services (Duina and Smith 2019), law (Saurugger and Terpan 2019), monetary policy (Jones 2019), ‘social Europe’ and labour markets (Menz 2019), immigration (Lavenex 2019) and cultural policies (Thatcher 2019). The first finding is that the EU institutions have sought actively to create political identities in policy making. They have developed and articulated values that go beyond the benefits of economic exchange. They have promoted values that limit and harness economic competition, sometimes in surprising circumstances. Thus, for instance, the ECB has tried to encourage greater political union; the Commission has sought to introduce ‘social Europe’ or cultural exceptions to free movement of goods, while the European Court has expanded values of social and human rights alongside market creation (Jones 2019; Menz 2019; Thatcher 2019; and Saurugger and Terpan 2019). Sometimes the articulation of political values has formed part of economic strategies (e.g. in trade) and sometimes it has been an alternative (e.g. in immigration) (Duina and Smith 2019, and Lavenex 2019). However, the second finding is that the extent and coherence of a distinct EU identity vary greatly. In some domains, the EU has developed a well-established and consistent identity. The two clearest examples are external trade and external borders, where the EU has developed a clear identity (Duina and Smith 2019 and Diez 2019). In others, there are several distinct and well-formed EU identities—the clearest example is the constitutional nature of the EU between a supranational approach and intergovernmental approaches, and in immigration and asylum policy among three identities (statist, normative power and market) (Fabbrini 2019 and Lavenex 2019). But in other fields, EU identity is less developed—wavering over time in labour policy (Menz 2019) or less differentiated from national ones in certain parts of cultural heritage policy (Thatcher 2019). The third finding is change and development over time, with an expansion of identity and also modifications in its content. In almost all cases, EU institutions have expanded their attempts to create an EU identity. Sometimes this has gone hand in hand with the expansion of policy powers or soon after expanded powers were granted. Examples are macroeconomic policy, where after monetary union, the ECB began to press for a stronger EU political identity (Jones 2019) or the European Court’s  contribution to the creation of an integration through law identity of the EU (Saurugger and Terpan 2019). But expansion of EU policy has not always led to the growth of a supranational EU identity—on the contrary, intergovernmental approaches have expanded in the 2000s (Fabbrini 2019). Nor is such an expansion a necessary condition for EU institutions striving to develop an EU identity—EU policies in cultural heritage remain modest but attempts to expand its identity through symbols and discourse began before the EU gained competencies and have grown (Thatcher 2019). Reprinted from the journal

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The cases studied, as well as cross-case comparison, can help identify explanatory factors and attendant causal processes that aid or constrain the expansion of the EU’s political identity—or often identities—and the content of those identities. The first and powerful factor seems to be whether the domain is external or internal to the EU. In the former, EU organisations have found it much easier to craft an EU identity in matters that involve non-EU actors. Thus, for instance, Francesco Duina and Zeke Smith (Duina and Smith 2019) show the contrasts between the Commission’s capacity to find common values and a public discourse in international negotiations concerning food and GMOs and its ability to do in the internal market on communications. Using a constructivist approach, Thomas Diez (Diez 2019) argues that setting borders is constitutive of identity, as apparently economic or technical matters such as customs rules establish an identity of being ‘within the EU’ or outside of it. The authors point to several processes and factors that can apply strongly in external domains. One is institutional—for instance, exclusive powers in external trade negotiations. Another is opposition to other countries—such as the USA in food standards or Turkey and Russia in setting borders. In contrast, the efforts by EU organisations to build a differentiated EU identity in internal matters face stronger several constraints that relate to four other explanatory factors. Indeed, the second factor concerns the existence of long-standing and powerful rival national identities. This is clearest in heritage policy where national identities are closely associated with conceptions of the nation state or in immigration and asylum policies where the right to exclude ‘foreigners’ is seen as a key prerogative of the modern nation state (Thatcher 2019; Lavenex 2019). (Of course, whether these national policies are really fundamental to national identities can be questioned—many ‘national traditions’ were invented in the nineteenth century and/or belong to specific groups and not the entire nation, especially the contemporary one, while many legal restrictions on immigration are relatively recent, but beliefs about their relationship with nation states are powerful and can impede an EU identity.) Hence, in certain domains, EU institutions face stronger and better formed national identities and opponents armed with arguments that such domains should remain the preserve of the national level as they are essential for national identity, than in other domains. Third, however, there are also conflicting EU identities. As Sergio Fabbrini (Fabbrini 2019) underlines, the EU has a supranational identity which is challenged by an intergovernmental one. Which identity predominates is linked to institutional rules and allocation of powers. Supranational institutional arrangements create strong incentives for organisations such as the Commission and Court to promote a supranational identity, whereas the Council is keener on an intergovernmental one. Hence, in policy areas that are more intergovernmental, there are stronger conflicting identities. One good example is in immigration and asylum policy, where intergovernmental arrangements predominate, and hence, a ‘statist’ identity whereby member states have great autonomy predominates over other, more supranational identities such as an economic one or a rights-based one (Lavenex 2019). In contrast, in domains which are more supranational, EU organisations have greater capacities to build an EU identity. Thus, for example, the Court of Justice has been able to pass judgements and set out the values of integration through law as well as 11

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balancing economic values with other ones thanks to its position as the EU’s highest court (Saurugger and Terpan 2019). But supranational organisations may also have stronger incentives to do so. The most striking example here is macroeconomic policy, where Erik Jones (Jones 2019) argues that the unelected ECB has promoted the development of an EU political identity in order to have greater legitimacy in the domain and also to share if not offload responsibilities for inherently political decisions. The fourth factor is whether EU policies have expanded, in either a domain or a related domain. Sometimes such expansion has seen EU organisations engage in strong and successful attempts to build an EU identity, as in the social market policies under Delors or external trade policies in battles with USA over GMOs (Menz 2019 and Duina and Smith 2019). The example of macroeconomic policy also indicates that as the EU’s policy competencies expand, so policy makers seek an identity to legitimate their actions (Jones 2018). Sometimes this has occurred as EU policy in one area led to pressures for more a policy identity in a related one—for instance, as the single market developed in the 1980s, the Commission led by Jacques Delors sought to offset liberalisation with a ‘social market’ identity, although this was then reduced in the 2000s (Menz 2019). But there is no automatic link between such expansion and the creation of an EU political identity—relatively limited policy powers in cultural heritage have not prevented a series of attempts by the Commission to build an EU identity, although these have largely been unsuccessful (Thatcher 2019). The fifth explanatory factor is the interests and preferences of member states. They affect the scope and content of the EU’s political identity(ies). Georg Menz shows how the content of the EU’s identity in labour market policy has evolved over time according to not only the preferences of its leaders but also those of national leaders—from a ‘social market’ under the Delors Commission to a more liberal one based on values of competitiveness in the 2000s as even social democratic governments at the national level also adopted such values (Menz 2019). Moreover, although frequently national politicians have sought to limit the development of an EU domain, being able to do so most strongly in intergovernmental domains, they have also aided its growth by ascribing values to the EU that they oppose or wish to contrast with their own. In turn, EU organisations have reacted, sometimes by rejecting the labels attached to their actions—for instance, in macroeconomic policy—and sometimes by underlining the distinctiveness of EU identity—as in a set of common European values that are opposed to nationalistic ones in parts of cultural policy. The current populist wave that identifies the EU with values such as economic neo-liberalism, openness to immigration and austerity may thus have the effect of strengthening the EU’s identity.

Conclusions Studying the EU’s political identity from a top-down perspective adds important insights to our understanding of state building. While we do not enter debates about whether the EU is a state or what kind of state it might be, the articles of this special Reprinted from the journal

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issue show under which circumstances supranational institutions contribute to the creation of specific policy identities. The contributions to this special issue provide five explanatory factors that could be the basis for hypotheses on the construction of European—or even wider regional integration-wise—policy identities. First, it seems that external policies are more prone to have a clear identity, as they are established against an external opponent, be it the third country or another regional organisation. Second, the more coherent a national policy identity, the more difficult it is for European institutions to establish a European policy identity, as we have seen negatively in the area of the European heritage or social policy or positively in the field of the contribution of the ECB to the political identity construction of EMU. Third, when the preferences and interests of member states differ widely, a window of opportunity can allow European organisations to establish a distinct policy identity, as we have seen in the field of market integration through law. Finally, the existence of conflicting interests does not necessarily lead to an impossibility of European policy identities. The coexistence of different policy identities is a reality in the EU as it is at the national level. Instead, the key issue for us is to whether, how and why EU institutions can construct policy identities and the content of such identities. Acknowledgements We wish to warmly thank the Centre d’Etudes Européennes at Sciences Po Paris, the research centre Pacte at Sciences Po Grenoble and the School of Advanced International Studies, Johns Hopkins University Bologna and especially the Patrick McCarthy fund for funding and hosting workshops in which papers were presented and discussed; we also wish to thank the discussants at those workshops, notably for this article, Florence Haegel, Colin Hay, Matthias Matthijs and Manuela Moschella, as well as Kathleen McNamara and Sophie Jacquot; we also express our gratitude to the editors of the journal for their support.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France) and research fellow at Pacte. Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London School of Economics.

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Comparative European Politics (2019) 17:477–490 https://doi.org/10.1057/s41295-019-00171-8 ORIGINAL ARTICLE

Constructing and de-constructing the European political identity: the contradictory logic of the EU’s institutional system Sergio Fabbrini1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract The article investigates the forms that political identities have assumed in the EU through the functioning of its institutions. On the basis of the analytical distinction between supranational and intergovernmental institutional settings, the article shows that such a dual decision-making system has generated a contradictory logic with regard to the construction of political identity. If the supranational institutions have aimed to construct a European political identity with state-like features, the intergovernmental institutions have instead operated to de-construct that identity in order to preserve the national identities of the member states. With the multiple post-Lisbon Treaty crises, not only has the contrast between the two concepts increased, but the competition among national identities within the intergovernmental setting has triggered their transformation into nationalist claims. Keywords European political identity · National identities · Nationalism · EU supranationalism · EU intergovernmentalism

Introduction The article aims to answer the research question of this special issue through a macroinstitutional analysis. How is it possible that the European Union (EU) has increased its powers after 60 years of integration, while a European political identity has become highly contested? So contested in fact as to see the first secession from the EU, as happened with Brexit. It is the article’s argument that such a mismatch is the result of the institutional system (here understood as the Brussel’s political institutions) set up to govern that expansion of powers. The EU’s political system consists of institutions promoting different views on the EU’s identity, views which became a significant source

* Sergio Fabbrini [email protected] 1

Luiss, Rome, Italy

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of contrast in the period of the 2010s multiple crises (the article will not consider technical institutions, such as the European Central Bank and the European Court of Justice, although they certainly contribute to the process of identity’s formation within the EU, see Jones, and Saurugger, both this volume). On the base of the analytical distinction between supranational and intergovernmental institutional settings, the article investigates the process of identity formation in the former and in the latter. If the supranational institutions have incentivised the political actors (operating within them) to promote a European political identity, the intergovernmental institutions have instead incentivised the national leaders (coordinating within them) to de-construct that identity on behalf of the preservation of the national identities of the member states. This has not prevented the formation of interstitial institutional forms pragmatically combining the two approaches (Heritier 2007), particularly in new policies such as the banking union (Fabbrini and Guidi 2018). However, the two approaches have continued to structure the EU decision-making process. The 2009 Lisbon Treaty, indeed, formalised a sort of truce between the two approaches. With the clause celebrating the necessity to “respect the equality of Member States…as well as their national identities”, it recognises the importance of national identities in the functioning of the EU. At the same time, with the clause confirming the necessity to create “an ever closer union”, it lends legitimacy to the state-like view of European political identity. That truce has ended with the post-Lisbon Treaty multiple crises. Those crises have shown the unrealistic character of the state-like approach pursued by supranational actors, but also the deconstructing nature of the multiple “statenesses” approach pursued by national leaders. In those crises, moreover, the defence of national identity has ended up in triggering the resurgence of nationalism. The contrast between the supranational and intergovernmental decision-making framework has thus generated a contradictory logic regarding the construction of political identity in the EU. The article will be structured as follows. First, it will introduce the basic concepts of the analysis, those of political identity and institutional differentiation. Second, it will discuss the incentives of supranational political institutions (the Commission and the European Parliament or EP) to construct a European political identity, identifying the fundamental grammar that has allowed members of those institutions to think and speak European. Third, it will discuss the implications of the recognition of national identities as institutionalised in the intergovernmental political institutions of the EU. The aim is to show how those national identities have become the source of nationalist claims by national leaders at times of crisis. Finally, the conclusion will bring the main argument back home, namely that the EU’s political identity will continue to be a contrasted and contested process, unless a different institutional system reassesses relations between supranational and national identities in a union of states.

Political identity and institutional system The very concept of a European political identity continues to be the object of intense theoretical debate (McNamara 2015; Risse 2010; Checkel and Katzenstein 2009; Brubaker and Cooper 2000). According to the co-editors of this special issue Reprinted from the journal

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(Saurugger and Thatcher, this volume), political identity consists of “the self-understanding of a group of political actors as expressed in the institution’s norms, values and aims”. In this interpretation, political identity is not a static concept but a constructed social reality (Saurugger 2013). It is the outcome of strategic action, pursued by political actors endowed with decision-making power, aiming to use the logic of the institution for maximising their influence within it and promoting the institution’s mission. According to Saurugger and Thatcher (this volume), in investigating political identity, the “central question is to what extent, how and why have EU organisations and institutions created an EU political identity and what is the content of that identity?”. The construction of a European political identity thus requires the existence of institutions that support that aim and actors who have an interest in pursuing or are willing to pursue it. The purpose is the construction of a sense of belonging to a European polity, distinct from the member states, a sentiment necessary to give legitimacy to the decisions taken through the polity’s institutions. Here I will focus on the Brussels’ political institutions (Commission, EP, European Council and Council), thus discussing their institutional logic as the conceptual structure within which ideas and views (on the identity of the institution) emerge. If it is true that institutions think (Douglas 1987), they do that through a grammar that combines their legal text and political logic. Here resides a crucial distinction between the construction of political identity in the EU and in nation states. If national political institutions have mostly fostered and supported a shared national identity among the actors operating within them, the same cannot be said in the case of the EU. In the EU, the understanding of institutions’ norms, values and aims is highly differentiated. The institutional functioning of the EU encourages a pluralism of different political identities, a European identity through the supranational institutional framework and national identities through the intergovernmental institutional framework. Thus, the decision-making models institutionalised in the EU justify different strategic actions, leading to the maximisation of incompatible political identities. Identities are operationalized in conceptual terms, not on data derived from opinion polls as the Eurobarometer. In fact, the expansion of the EU’s powers and competences has not been accompanied by the same decision-making structure. Whereas the evolution of the single market has been, and continues to be, regulated by a supranational institutional framework (based on the triangular relations between the Commission, the Council and the EP), the Europeanization of the new strategic policies which entered the EU agenda after Maastricht has been managed mainly through an intergovernmental institutional framework (based on the special relation between the Council and the European Council) (Fabbrini 2015a). The supranational EU of the 1957 Rome Treaties, set up to create a common market which then became a single market with the 1986 Single European Act (SEA), has been joined, since the 1992 Maastricht Treaty, by an intergovernmental EU to decide those strategic policies traditionally at the core of state power (Genschel and Jachtenfuchs 2014), such as Common Foreign and Security Policy (CFSP), Justice and Home Affairs (JHA) and the economic side of Economic and Monetary Union (EMU). While the supranational EU epitomises the project of integration through law, the intergovernmental EU celebrates the idea of integration through voluntary policy coordination among member state 19

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governmental leaders and ministers. The former type of integration is based on legally binding decisions imposed on member state governments in the name of the European interest, the latter is based on the voluntary implementation of political decisions taken consensually by national leaders and ministers (Fabbrini and Puetter 2016). Certainly, new intergovernmental treaties as well as old pacts forecast sanctions for those member states dis-respecting the rules, but the final sanctioning decision is always in the hands of national governments (i.e. in the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, where the Commission can decide a sanction against a national government, the national ministers of the Council can stop it, although through a ‘reversed qualified majority’). To be sure, other mixed decision-making methods are used in one or other policy or sub-policy fields of the EU. However, assuming the existence of just two structurally different decision-making regimes or constitutional frameworks facilitates the investigation into the process of political identity’s formation. The institutional systems of the EU convey different incentives regarding European political identity, a differentiation that has ended up creating contrasting views about that identity, particularly at times of crises. Certainly, one might ask whether European and national identity are (or are not) incompatible. Legally speaking, they are not. Indeed, the 2009 Lisbon Treaty formalises their coexistence within the EU. In the Preamble, it confirms the resolution of the signatory states “to continue the process of creating an ever closer union among the peoples of Europe”, a closer union and not a more perfect union, that is a union that is expected to supersede its constituent states. At the same time, TEU Art. 4(2) confirms that “the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government”. The Lisbon Treaty thus mirrors a compromise between different interpretations of the nature of the EU and its political identity. In the former case, it claims a political identity superior to (or inclusive of) national identities, in the latter case a political identity subordinated to (or ancillary to) national identities. This compromise has been purposely ambiguous. After all, ambiguity is a necessary device for dealing with unsolvable dilemmas. However, the multiple post-Lisbon Treaty crises have called into question that compromise. Having exploded in policy fields under the management of the intergovernmental framework, the redistributive effects of those crises (such as the euro or migration crises) have deepened the divisions within the intergovernmental institutions (Genschel and Jachtenfuchs 2017), the unintended consequence of which has been the re-assertion of nationalism as a tool of interstate negotiation. Indeed, according to Bastasin (2015), the euro crisis has led to the first European war of interdependence. Brexit is the dramatic outcome of the successful mobilisation of those sentiments. Through the intergovernmental institutions (European Council and Council), national interests are directly projected into the centre of the EU institutional framework. Those interests have inevitably circumscribed the attempt to construct a European political identity, let alone to give ‘stateness’ or ‘statehood’ to the EU. In the dual constitutional system formalised by the Lisbon Treaty, European and national identities can coexist legally, but not necessarily politically. While the supranational framework favours the formation of a European Reprinted from the journal

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political identity, the intergovernmental framework functions according to the opposite logic of fostering the preservation of national identities. Let me more precisely clarify the correlation between institutional system and political identity in the EU.

Supranational institutions and the European political identity Since the 1941 Ventotene Manifesto, the founders and promoters of European integration as a political project have aimed to form a new state (called as “international state”) and a new people, the United States of Europe with its European citizens. In the supranational approach adopted to build a common market, there was the implicit assumption that such a market is the necessary step in order to move towards a closer (political) union. Two myths seem to have influenced the supranational actors engaged in constructing a European political identity distinct from the national identities of member states, a statist myth and a demos myth. Myths, indeed, matter also in the EU (Della Sala 2009). The statist myth is entwined in the design and logic of the Commission and the demos myth in the development of the EP. Since the 1957 Rome Treaties, the Commission has clearly been viewed as the institution in charge of representing the European interest as distinct from the national interests represented by the (then) Council of Ministers (subsequently only Council). This identification of the Commission with the European interest has never been questioned by the following treaties. As TEU, Art. 17 (1) asserts, “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end”. In order to fulfil its role, the Commission, states TEU Art. 17 (3), “shall be completely independent. (…) the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity”. Although the members of the Commission shall be chosen from among the nationals of the member states, as both individuals and as a body they must act in a fully autonomous manner. The European mission entrusted to the Commission is epitomised by its monopoly of legislative initiative. Although this monopoly is not celebrated as a defining feature of the institution (in the “Institutional Provisions” of the TEU) but only as a procedural aspect of the legislative process (TFEU, Art. 289 and Art. 294), only the Commission (and not the Council or for that matter the EP) can submit a proposal of regulation or directive to one or other legislative chambers. It seems clear that the design and role of the Commission correspond to a mainly French myth on state building from above. The Commission as a body of highly qualified civil servants recalls the public administrators who promoted, if not led, the construction of the French state (Greenfeld 1992). The myth of the French experience has influenced the formation of the EU’s civil and legal order, from the administrative structuring of the general directorates of the Commission (which brings to mind the technocratic body at disposal of the French state’s planning activities) to the founding of the College d’Europe in Bruges (recalling the model of the French École Nationale d’Administration) where to train and then select the future functionary elite of the EU supranational institutions. The Commission’s officials have developed the ethos of functionaries whose duty is to build (from above) the 21

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European political identity (Kassim et al. 2013). The Commission has continued to display the most pronounced predisposition, among the EU supranational institutions, to interpret the EU as a state in the making. Through its highly efficient solutions to common problems, this has been the traditional assumption of the Commission, the loyalty of national citizens would gradually transfer from domestic to European institutions. The neo-functional belief (Haas 1958) has represented the new rationale for an old myth, i.e. the building from above of a state and a political identity at the European level as the further or ultimate step of a historical process of removing boundaries (Bartolini 2005). Successive generations of Commission officials and leaders have continued to be committed to the building of a supranational Europe. It is within the Commission that the most determined constructors of the European political identity have continued to operate—constructors who use their technical expertise in providing public goods to national citizens on the assumption that this would help transfer their political identity from the national to the European level. For the Commission’s actors, the claim to take on more and more competences and powers has been justified by the necessity to increase the EU’s output capacity, in its turn a condition for building a EU with its own political identity. The Commission with its administrative structure is not only the closer approximation to the French concept of gouvernement, but it is also the institutional embodiment of the project to build a European state. The statist myth is predominant in the French political culture where the state is considered to be the epitome of political modernity. Since France was a state before than a people, for many French politicians engaged in the European project (from Jean Monnet to Valéry Giscard d’Estaing to Emmanuel Macron) the formation of a European state (or, as Macron said in his 26 September 2017 speech at La Sorbonne, “la refondation d’une Europe souveraine, unie et démocratique”) was and is considered a necessary condition for creating a European demos. The absence of a European state would leave the rights of European citizens unprotected. Indeed, several leaders of the French left opposed the EU Constitutional Treaty (CT) in the 2005 referendum, precisely because that Treaty was assumed to advance the cause of a private market unconstrained by public institutions (or, in the campaign’s jargon, the cause of a neo-liberal society and not of democratic citizenship). For others (on the right), the absence of a European state makes democratic order implausible. Several neo-Gaullist leaders opposed the CT during the same referendum because of that Treaty’s presumption that a constitutional order might be built without the support of a state as centralised organisation of public authority (Lacroix 2010). If the Commission’s construction of the European political identity has had an administrative bias derived from the French myth of state building, the perspective pursued by the EP and its members (MEPs) for constructing that identity has instead had a demos bias derived from the post-second world war German myth of nationbuilding. For the main political parties of the EP (as the Christian democrats and the Socialist democrats within which German politicians have been traditionally the most influential), the construction of a European political identity has been considered as the necessary outcome of the politicisation of the EP elections along the traditional left vs right cleavage (Hix 2008). Since the direct election of the EP in 1979, the leaders of the main political parties have tried to politicise the EP elections, on Reprinted from the journal

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the assumption that politicisation would reduce the appeal of national political processes, thus creating a European demos divided along partisan rather than national lines. For the parliamentary party leaders, the formation of a European demos constitutes the systemic condition for moving onwards in the building of a European polity. It was this supranational conception of a European demos that caused the transformation of the EP from a legislature representing the citizens of the member states (as established by the 1992 Maastricht Treaty) to a legislature representing European citizens (as celebrated by the 2009 Lisbon Treaty). In fact, TEU Art 10 (2) states: “Citizens are directly represented at Union level in the European Parliament”. The assertion that the MEPs are the representatives of European citizens is equivalent to the assumption that there is a European people that is waiting to be politically represented. Other proposals, advanced by several MEPs and EP advisers and officials, go in the same direction (Duff et al. 2015: 8), namely “to create a pan-European seat from which 25 MEPs would be elected from transnational party lists”, or to introduce a compulsory clause that requires national parties to compose multinational lists for the EP elections. Finally, as Brexit leaves open 73 parliamentary seats held by British MEPs, the European Parliament Committee on Constitutional Affairs voted, in January 2018, to replace them (or few of them) with transnational lists representing multiple countries. In short, the EP mission should be to create a European demos, divided along party and not national lines (as happens within member states). This aim was explicitly expressed by the main European political parties when they decided to run the EP elections of 2014 with a spitzenkandidat for the office of the Commission president (for different views, see Christiansen 2016; Fabbrini 2015b). Also this parliamentary approach to political identity has a statist view of the EU. Making the EP the centre of the EU decision-making process and freeing the EP from national divisions means creating the conditions for a centralisation of public authority in the (only) institution representing the European demos. Certainly, the Council cannot be excluded from the legislative process. However, it is only the EP that can encourage the construction of a European demos. The outcome should be the formation of a parliamentary state whose centralising thrust will be necessarily mitigated by the legislative chamber representing member state governments (the Council). According to the main EP leaders, in fact, the latter institution should go back to including, as its highest level, the European Council of the heads of state and government, thus abolishing the distinction between the two intergovernmental institutions (a distinction, however, prescribed by the Lisbon Treaty). Here the mobilising myth comes from Germany because of the latter’s experience of building a nation before the state (Spruyt 1994). Indeed, this was, and continues to be, the German approach not only to democracy, but also to European integration. For German institutions, such as the Bundesverfassungsgericht or Federal Constitutional Court, the pre-existence of a European demos is the very condition for transferring powers and competences to the EU. Since Germany started from a demos, for German lawyers it follows that the EU can claim autonomous power (from the member states) only if legitimised by the existence, at the continental level, of a politically homogeneous people. This theoretical frame has accompanied the German Federal Constitutional Court from the decision in Manfred Brunner and Others vs The European Union Treaty of 1994 23

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to the 2012 ruling on the constitutionality of the Fiscal Compact (or Treaty on Stability, Coordination and Governance in the Economic and Monetary Union). Since a European demos does not yet exist, as stated in the 1994 decision that the EU “is not a State based on the people of one European nation”, then the EU powers should be limited and put under the direct control of national democratic institutions (courts and parliaments). Indeed, the German lawyers’ criticism has gone as far as to call into question even the distribution of EP seats, a distribution that does not correspond to strictly proportional representation (PR) criteria (over-representing the small states like Malta vis-à-vis the larger states like Germany through the principle of ‘degressive proportionality’). In short, as a German legal scholar (Grimm 2000: 254) observed, “The European level of politics lacks a matching public”. The myth of the German experience has influenced EP political leaders in their efforts to create a political community out of the politicisation of the parliamentary elections. The construction of a European political identity would correspond with the formation of supranational partisan identities superseding national ones. This is why EP political leaders have tried to construct a European demos through the politicisation of party competition (Hoeglinger 2016). In its turn, the construction of a European political identity through either the Commission or the EP has taken advantage of the decisions of the ECJ that have defined a transnational legal space where a supranational political identity can prosper. Through its decisions, the ECJ has indeed transformed the Treaties into a quasi-constitutional document, increasing the political salience of the market-building process. Through the interplay of the Commission, the EP and the ECJ, the supranational institutions of the EU, which dominate the institutional framework of the single market, have aimed to transform the EU into a parliamentary state in the making, supported by an efficient administration and legitimised by a European demos. The socialisation taking place within those supranational institutions has fed their sense of mission of creating a Europe with its own political identity. However, since the Maastricht Treaty, the EU has come to institutionalise also an intergovernmental institutional framework to manage the new strategic policies which entered the EU agenda with the end of the Cold War. The Lisbon Treaty abolished the pillar structure where those policies were contained, but it left unaltered their intergovernmental decision-making process. Indeed, because the post-Lisbon Treaty multiple crises have concerned policies (such as the economic policy of EMU, the security policy for dealing with terrorism, the migration policy as a sub-field of justice and home affairs) under intergovernmental control, it has been inevitable that the European Council and the Council have come to play a central decision-making role. Owing to the redistributive effects of those crises, within those intergovernmental institutions interstate divisions have emerged which have hardened the national identities constituting them. The implication of intergovernmentalism has been the institutionalisation, at the Brussels level, of the differentiation between national interests and identities. The multiple post-Lisbon Treaty crises have transformed the latter into nationalist sentiment or claim.

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Intergovernmentalism and the resurgence of nationalism The supranational EU was thus the only game in town from the 1957 Rome Treaties to the 1992 Maastricht Treaty, but no longer after the end of the Cold War. The unitary structure of the EU has been differentiated and the decision-making process for new policies has been structured by a different method where national governments play a dominant role (Puetter 2014; Bickerton et al. 2015). National governments coordinate within fully institutionalised arenas, such as the Council and above all the European Council. With the Lisbon Treaty, the European Council has become a genuine executive institution, separated from the Council that remains a legislative institution, equipped with a quasi-permanent president that epitomises its distinctive nature. Although the Commission and the EP have tried to promote a state-inspired idea of European political identity, their attempts have necessarily come to be constrained, if not curtailed, by the growing decisionmaking role played by the institutions representing national governments in Brussels, i.e. the European Council and the Council, with their multiple ‘statenesses’. By their very nature, these latter institutions represent the national identities of the EU member states, national identities whose respect is guaranteed by TEU Art. 15 (4) which explicitly states: “Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus”. If political identity derives from the actors’ understanding of the institution’s norms, values and aims, then national government leaders coordinating within the European Council and Council have ended up interpreting their role as representatives of national views, although operating within a EU framework. A difficult balancing act. Indeed, that equilibrium has come to be shaken by the explosion of crises with dramatic redistributive effects. It is incorrect to detect causation between the intergovernmental logic and the resurgence of nationalism, but correlation has certainly been at work. It is arguable that it has been through intergovernmental institutions that nationalism has re-entered the EU political process. Of course, nationalism has never disappeared in Europe. However, if an institution, based on the coordination of national governments, is allowed to play an exclusive decision-making role, then it is plausible to assume that its members are incentivized to stress their national interests and claims in that decision-making process. In any case, nationalism has continued to be a feature of the political process of the islands and peninsula of north Europe and of the east European countries. Since its accession to the EU, the United Kingdom (UK) came to head a coalition of member states that viewed integration primarily as a process of strengthening the single market without, however, affecting national sovereignty. These member states regarded the deepening of the integration process, which has taken place from the Maastricht Treaty onwards, as a threat to their national sovereignty and identity, that needed to be countered by pressing for further enlargement in order to increase the patchy nature of the Union (Geddes 2013). As the then British Prime Minister David Cameron said on January 23, 2013: “The European Treaty commits the member states to lay the foundation of an ever closer union among the peoples of Europe … We understand and respect the 25

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rights of others to maintain their commitment to this goal. But for Britain—and perhaps for others—it is not the objective”. Indeed, the UK decided to leave. If the British defence of national sovereignty sprang from the distinct historical phenomenon of democratic nationalism epitomising the political identity of the country (Garton Ash 2001), the same cannot be said, instead, for the nationalism of east European countries. It was nationalism that enabled the UK to preserve democracy in two world wars (MacCormick 1996), whereas nationalism operated in the opposite direction in east Europe in the same period. For the leaders of both groups of countries, nevertheless, the intergovernmental institutions of the EU have represented the most favourable environment for asserting their national interests, expressing their presumed untouchable or non-negotiable national red-lines. The latter have been used by those national leaders for carving out a differentiated political status for their countries in the EU. Before 2016, in addition to opting out from adopting the euro (with Denmark and Sweden), the UK (and Poland), in exchange for signing the Lisbon Treaty, obtained the possibility of opting out from the Charter of Fundamental Rights. The Czech Republic joined the two countries in opting out from the Charter with the 2013 Treaty on the accession of Croatia. The UK, Ireland and Denmark also opted out from legislation adopted through qualified majority voting (QMV) in the field of police and judicial co-operation in criminal matters. Ireland and the UK opted out from the Schengen Agreement on the free circulation of persons. Denmark opted out from foreign and security policies. The UK, Ireland, Denmark and Sweden (and later also the Czech Republic) asked and obtained regular opt-outs from parts of the Treaties or from recognising the jurisdiction of the ECJ concerning specific social and economic rights. The UK did not sign the Fiscal Compact Treaty (the only then member state not to do so, given that the Czech Republic finally signed it in March 2014). The governments of the east European member states have fought to defend their restored national sovereignty after almost half a century of enforced Soviet domination. The so-called “Visegrad group” (Poland, Hungary, the Czech Republic and Slovakia) was particularly vociferous in opposing, within the European Council, the quota system devised by the Commission for the re-allocation of refugees in the migration crisis of 2015–2016. Those opt-outs and opposition have represented the institutional or political protection of specific national identities in crucial policy fields (becoming, in some cases, EU hard law), negotiated within the intergovernmental institutions. The national leaders of the west continental European member states have played a different game within the intergovernmental institutions. For the western continental states, nationalism was historically the force that erased democracy, owing to a set of cultural and ecological factors. Nationalism sustained the centralist ambitions of dominant authoritarian groups. Inevitably, for the member state leaders inheriting this historical experience and memory, integration has represented the antidote to the virus of authoritarian nationalism. It was this group of countries that needed to sign the peace pact to bring to an end the long era of European wars (Hendricks and Morgan 2001). Even though these countries recognised the process of integration as a political necessity, they, however, came to interpret it in different terms in different historical periods (Lacroix and Nicolaidis 2010). This is the case particularly of France, which has displayed quite ambivalent and oscillating sentiments towards Reprinted from the journal

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an integrated Europe. At the beginning of the integration process a federal Europe was considered, by statesmen such as Robert Schuman and by public officials such as Jean Monnet, as the only solution to rivalry with Germany and particularly in relation to the threat represented by the reconstruction of the latter; in the 1960s the Gaullist component of the French political elite moved the country in the opposite direction, aggressively contrasting any significant transfer of sovereignty from the national to the European level. French ambivalence towards the form of the political project of the union has been the cause of the cyclical stop-and-go in the integration process. The new demographic and economic asymmetry between France and the re-unified Germany led French politicians to fear a European state that might think and speak German. Since then, French governments have generally supported the perspective of an intergovernmental union, functioning according to a logic of unanimity, within which the French government could check and veto decisions it was against. Thus, French élites managed their ambivalence through the strengthening of the intergovernmental logic. It has been in the European Council that such French ambiguity has been traditionally expressed (Calleo 2001). French government leaders have operated within the European Council to prevent Germany from transforming its demographic and economic superiority into political influence. It was the French political elite that put forward, since Maastricht, a model of integration based on the pooling (not the sharing) at the European level of national sovereignties on the sensitive areas of foreign policy and the Eurozone governance. In promoting the intergovernmental model, the French political elite have assumed that the model could be a powerful defender of national interests and identities. Indeed, political intergovernmentalism has become the mainstream perspective of the French political elite, particularly after the popular rejection of the Constitutional Treaty or CT in the 2005 referendum (Grossman 2008) and the electoral growth of the Front national (now Rassemblement national). It is not yet clear whether this intergovernmental perspective, with its nationalist implications, will be also adopted by president Emmanuel Macron as the institutional tool for creating a new European sovereignty. Ambivalence towards the supranational model has emerged also in the other western continental member states. Although in countries like Germany, Italy, the Netherlands or Spain, there has been a widespread (although not always majoritarian) acceptance of the EU as a political project, nevertheless the latter has not always been interpreted in supranational terms. Consider the German case. In Germany, a country favouring supranational (if not federal) solutions in the first decades of integration, with the 1990 reunification, the national predisposition has moved in direction of intergovernmental perspectives. Supported by powerful sectors of the financial and legal establishment, the intergovernmental governance of the economic policy side of EMU has come to fit well with the post-unification German national interests. Becoming a member just like the others, German chancellors and ministers have pursued or defended openly their national interests in the intergovernmental institutions. The predominant role played by Germany in the intergovernmental institutions of the euro-area (like the Euro Summit and the Eurogroup), and the perception (although controversial) held by the German public that indebted euro-area member states have played moral hazard against their country’s finances, 27

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has paradoxically increased the nationalist sentiment of German elites and public opinion (Bulmer 2014). A sentiment that has led to the formation and electoral influence of a party, the Alternative für Deutschland or AFD, claiming an unprecedented nationalist agenda. Indeed, in the Bundestag’s elections of September 24, 2017, the AFD conquered 94 seats getting 12,6 per cent of the popular vote (and becoming the first or the second party in the five eastern Länder). The constitutional decision to create a specific intergovernmental regime to manage policies which are traditionally close to national interests has been justified by the necessity to guarantee the respect of each national identity when managing those policies (Wessels 2016). The intergovernmental logic formally excludes recourse to majoritarian solutions to resolve interstate disputes. The intergovernmental institutional framework aims to guarantee the plurality of national identities and interests. However, in facing unprecedented crises, the consensual approach of national leaders has been overtaken by nationalist urges (because of the necessity to be accepted or re-elected back home). Thus, a number of those leaders have turned to nationalism as a tool of interstate negotiation and domestic legitimacy. One has only to think of the deep divisions, induced by the euro crisis or the migration crisis, between the leaders (in the former case) of north and south member states and (in the latter case) of west and east member states. Lacking internal and external supranational checks, the intergovernmental institutions have become the vehicle for expressing nationalist views, thus transforming the acknowledgement of national identities into the affirmation of national interests (sometimes in an antagonistic manner). The quasi-permanent president of the European Council and Euro Summit or the president of the Eurogroup have not always been able to keep that antagonism in check. Although the intergovernmental institutions have created a European space for policy discussion, that space has been also filled with nationalist leaders and claims. National identity and nationalism frequently overlapped in their historical development (Smith 1991). However, their distinction is crucial within (and for) the EU. National identity is an empirical reality, embodying not only the fundamental political and constitutional structures of a country, but also the political culture of the latter (Von Bogdandy and Schill 2011). Nationalism, instead, is a strategy of mobilisation, used by ruling elites, to generate, among citizens, a sentiment of political support for their action, particularly when they are in contradictory relations with other member states or EU supranational institutions. Through the institutionalisation of the intergovernmental framework, the distinction between national identity and nationalism has waned.

Conclusion After 60 years of integration, the EU oscillates between construction of a European political identity and its de-construction through the re-affirmation of national political identities. This is due to the logic supporting the EU institutional system. Distinguishing between supranational and intergovernmental constitutional settings, the article has investigated the process of identity formation in the former and in the latter. If the supranational institutions have incentivised the political actors to Reprinted from the journal

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promote a European political identity with state-like features, the intergovernmental institutions have instead incentivised the national leaders to de-construct that identity on behalf of the preservation of the national identities of the member states. Whereas the supranational logic has incentivised the Commission and EP actors to pursue a state-oriented European political identity, the intergovernmental logic has re-affirmed the national identities of its members with their own statist bases. The Lisbon Treaty formalised a sort of truce between the two approaches. That truce has ended with the multiple post-Lisbon Treaty crises. Those crises have shown the unrealistic character of the state-like approach pursued by supranational actors, but also the disintegration’s implications of the multiple “statenesses” approach pursued by national leaders. In those crises, in fact, the defence of national identity has triggered the resurgence of nationalism, as Brexit dramatically epitomised. If the intergovernmental EU fosters contraposition between national identities and the supranational EU ends up claiming an unrealistic statist view of European political identity, what kind of institutional framework might instead help to construct a compound political identity, inclusive of European and national identities?

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Sergio Fabbrini is Professor of Political Science and International Relations and Dean of the Political Science Department at the LUISS Guido Carli in Rome.

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Comparative European Politics (2019) 17:491–511 https://doi.org/10.1057/s41295-019-00180-7 ORIGINAL ARTICLE

Affirming Europe with trade: deal negotiations and the making of a political identity Francesco Duina1,2 · Ezekiel Smith3 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract Drawing from economic sociology, this article argues that trade liberalization is never devoid of cultural and symbolic content. As such, when pursued by international entities, it can help affirm collective identities. The EU Commission’s recent external trade negotiations with the USA (TTIP) and Canada (CETA) over food quality offer excellent examples. Pitting itself against North American neoliberalism and business-oriented commercialism, the Commission has championed a European understanding of food integrity and social responsibility. In so doing, it has also emphasized its role as the institution protective of European values on the world stage. Internally, the Commission’s pursuit of a digital single market has in parallel revealed a different approach. Here, the Commission has stressed the values of efficiency, the transcending of national borders, and consumer and business freedom. In that context, the Commission has presented itself as the political entity capable of advancing a dynamic and competitive vision of Europe. These differences point to the complexity associated with crafting ‘European’ values. They also point to preexisting domestic regulatory traditions in certain sectors as key factors influencing the Commission. We close by reflecting on the fact that the Commission’s rhetoric has not gone unchallenged externally or internally. Keywords CETA · Identity · Values · Trade · TTIP

* Francesco Duina [email protected] 1

Department of Sociology, Bates College, Lewiston, USA

2

Department of Sociology, University of British Columbia, Vancouver, Canada

3

Bates College, Lewiston, USA

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The Commission and the EU’s political identity The Commission has affirmed the EU’s political identity through trade. The claim should not be all too surprising to those familiar with the foundational tenets of economic sociology: All kinds of economic activity are ‘embedded’ in, reflective of, and generative of symbolic and cultural material. Trade is no exception (Appelbaum et al. 2001; Goff 2007). The insights of economic sociology extend to all aspects of any given economic activity. The formal and informal rules of negotiations and exchange—agreed upon at some point—not only facilitate and make possible trade but also reflect basic societal values (of fairness, for instance, or trust) (see, for example, Barrientos and Dolan 2006). The very objects being traded require informal and often formal definition, and this necessarily embodies shared understandings of the essential qualities of those objects as well as normative perspectives around those objects (for example, safety features or the qualities of ingredients or composite parts) (Brown 2013; Potter and Biukovic 2011). Crucially for the discussion in this special issue, the insights also extend to the actors involved in whatever economic exchange one looks at (Duina 2011). For economic sociologists, actors can enter into economic exchanges already pre-constituted by virtue of having undergone certain societal processes. At the micro-level, we can see this, for example, with different types of professionals, such as accountants and doctors, who undergo training via the adoption of agreed-upon skills and values that is then symbolically certified by way of diplomas and degrees ahead of engagement in the marketplace. Something similar applies at the more macro-level, with firms, trade unions, and states entering into exchanges with pre-established characteristics. But actors can also articulate and define themselves through the economic interaction itself (Spillman 1999; Hass 2007, pp. 29–30). This process can be rather tacit and even unconscious but can also be very intentional: Actors use economic events as valuable occasions for the assertion of their very identity. This inevitably involves the use of cultural and symbolic material and can be done in a positive manner (through the articulation of what the actor stands for) or in a negative fashion (by stating what the actor rejects or stands in opposition to). It may also involve assimilation into a group or antagonism toward other actors. For the purposes of self-definition, all these are functionally equivalent: They all help define actors. We can leverage these insights to propose that economic activity, which is always about trade, affords actors excellent opportunities for the articulation and affirmation—in other words, construction—of identities. This, this paper suggests, is precisely what the EU, and the Commission in particular, have done. The attention turns to some of the most recent and important of the Commission’s trade efforts externally with third parties and internally with its member states. On the external front, the Commission’s negotiations over two comprehensive trade agreements with the USA (TTIP) and Canada (CETA) have stumbled over divergent approaches to food quality, specifically in relation to genetically modified (GM) foods and beef from hormone-fed cows. Pitting itself against North Reprinted from the journal

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American neoliberalism and business-oriented commercialism, the Commission has championed a European understanding of food integrity and social responsibility. In so doing, it has also emphasized the importance of political oversight over market activity and, with that, its own role as an institution capable of protecting European values on the world stage. On the internal front, the Commission’s pursuit of a digital single market (DSM) has revealed a different discourse. Here, again, the Commission has presented itself as the EU institution capable of advancing a European vision while underscoring the idea that market creation cannot happen without political support. In this case, however, its language has emphasized the values of efficiency, seamless national borders, and consumer and business freedom. This is a second perspective on the European project: One that aims at the creation—through the Commission’s leadership—of an economic space that supersedes national differences. This article examines the Commission’s external and internal trade initiatives to highlight its articulation of European values and the related emergence of a EU political identity—in line with the primary argument put forth in this special issue. In the process, attention goes to the challenges associated with crafting coherent cultural and symbolic material across different issue areas—a second theme the editors of this special issue stress in their introduction. The process is messy and seldom coordinated. In the two cases considered here, we note that with food the EU entered the negotiations with already developed, for its own market, quality regulations on health and food integrity. These reflected the concerns and national regulatory regimes of certain member states especially. The Commission has thus in effect ‘uploaded’ the principles inherent in those regulations onto its transatlantic efforts. In the case of the DSM, the Commission has by contrast operated in a much looser historical context. As such, it has adopted a more market- and future-oriented competitive discursive approach. Table 1 summarizes the findings.

Table 1 Trade, political identity, and values TTIP and CETA: GMOs and hormone beef

European digital single market

Preexisting regulatory conditions

Extensive EU-level regulations, reflective of domestic regimes in some member states

Limited and fragmented member state regulatory regimes

Commission’s role in crafting an EU identity

Protector of European culture on world stage with political oversight over market

Promoter of a modern and integrated market space

Efficiency Seamless national borders Consumer and business freedom

Invoked values Environmental protection Animal welfare Food quality Consumer health and safety Protectionism Precautionary principle Plant health

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Methodologically, the spotlight goes to the statements—made in public forums, meetings, press releases, and official documents—by prominent actors in the Commission as they work on trade promotion that assert shared ‘European’ values: claims, by those officials, about what Europeans care for, believe in, see as unique about themselves, and stand for in the contemporary world. In parallel, attention also goes to statements by the same officials about the role of the Commission in advancing those values. To be clear, the goal is to identify what Commission actors have said about their initiatives. It is not to arrive at an objective description of those initiatives. We begin by situating this analysis in the broader literature on the ‘actorness’ of the EU as a trade entity. We then proceed to examine the Commission’s assertions during the TTIP and CETA negotiations, and during its pursuit of the DSM. We close by summarizing the findings and noting that the Commission’s rhetoric has not gone unchallenged externally or internally.

The EU as a trade ‘Actor’: the broader literature This article builds on the literature on the ‘actorness’ of the EU: Can the EU be thought of as a cohesive actor on the world stage? Some of the most sophisticated analyses so far have concerned the EU’s activities in the area of democracy promotion (Börzel and van Hüllen 2015), foreign aid (Carbone 2013), human rights (Balfour 2012), and the diffusion of its regional integration model (Lenz 2012). But perhaps the most conclusive data concern trade. The EU has engaged in trade negotiations and disputes with third countries, whether bilaterally, regionally, or in the WTO context. By and large, in this area, most analyses conclude that the EU does indeed operate as a genuine and unitary actor (Elsig 2013). The main preoccupation of scholars has been with identifying the institutional— legal and administrative above all—mechanisms that have helped the EU function as an actor. First, by virtue of being part of a common market, the EU member states participate in a shared external tariff regime. It logically follows that the EU has historically represented those member states, as a bloc, in any international negotiation. This is a constitutional matter that endows the EU with a good degree of agency (Gehring et  al. 2013; Strange 2015, p. 866)—an agency made even more consequential by the fact that negotiations increasingly involve standards in multiple issue areas (Nicolaïdis and Egan 2001; Young 2016). Second, and related to the first point, the EU has in place processes for the articulation of national interests and the resolution of conflicting standpoints. In particular, the Council of Ministers decides via qualified majority voting on a broad mandate for the Commission regarding any given external deal. At the ratification stage, in turn, through either qualified majority voting or unanimity depending on the issues involved, member states have further input (da Conceição-Heldt 2014, p. 982). These processes enable the EU to assume a cohesive position in negotiations with third parties and in the approval stages. They allow the EU to act as a unitary entity on the world stage and ‘look’ like a sort of federal state. Reprinted from the journal

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Third, the Commission, and its DG Trade in particular, has operated as the primary representative of the entire bloc: While the Council sets the negotiating guidelines for any given deal, and the Commission consults and at times coordinates its position with the European Parliament, the Commission, per treaty law, drives the process (da Conceição-Heldt 2014, p. 982). This has enabled it to act with purpose and latitude—precisely what we would expect from a legitimate international actor. Not all of these institutional mechanisms function smoothly. Some scholars point out, for instance, that bureaucratic complexities and procedural nuances can preclude the formulation of a cohesive position. Divergent member states’ preferences can also mean failure to arrive at a shared position in the first instance—not unlike what has happened in areas such as foreign aid (see Carbone 2013 but also Macaj and Nicolaïdis 2014 for arguments for why such differences may not be too problematic). Others note that member states can in certain areas retain considerable control over trade policies and regimes—because of security considerations, for instance, opt-out clauses, or other reasons (Meunier and Nicolaïdis 2006). These are fair observations but do not detract from the overall picture of the EU and the Commission functioning as real, and often powerful, actors on the world stage. To the list of internal institutional mechanisms, scholars add external institutional ones. International forums, such as the GATT and later WTO, by allowing for EU representation, effectively grant it legitimacy as an actor (Elsig 2013; Senti 2002; Gehring et al. 2013). Of course, caveats are in order here too. The makeup and rules of international organizations make a difference (Marsh and Mackenstein 2005, p. 56). At the WTO, the EU but also its 28 member states participate. Though the latter should not play a role in formal negotiations, they do so anyway, and sometimes reach formal agreements on their own (Senti 2002, p. 114). In bilateral negotiations, the Commission alone is present. Consultations with interest groups can vary too across settings. But, even with these caveats in mind, the consensus is that, by and large, the EU Commission functions as an actor (Meunier and Nicolaïdis 2006). These contributions have helped us understand better the ‘actorness’ on the world stage of the EU, and the Commission especially, in the realm of trade. Yet, their focus on the enabling institutional mechanisms have shed light on why the EU is able to function as an actor but have told us less about how it operates and the qualities or characteristics it displays. This is especially so when it comes to its political identity. Political identities emerge from, and reflect, cultural and symbolic material that articulates and projects particular perspectives on the world. Political actors with identities, when taking policy positions, express and refer to distinct values, norms, and beliefs that help them define and differentiate themselves from other political entities. Have the EU, and its Commission in particular, as actors been involved in the process of articulation of such cultural and symbolic material (Cerutti 2003, pp. 27–29)? This paper contributes to the discussion around the EU’s ‘actorness’ by arguing that, in pursuit of trade objectives, the EU Commission has indeed affirmed quite strongly distinct sets of European values. The typically very technical nature of those negotiations has by no means precluded this from happening. This has occurred not only in the EU’s pursuit of external trade negotiations with other countries—bilaterally, as regional blocs, or multilaterally—but also, importantly, during the push 35

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for the completion of a truly integrated internal market and the negotiations with the member states and relevant actors such as interest groups and citizens associations. The outcome of this process has been the articulation of a European political identity.1

Food, earth, and tradition: protecting Europe at the CETA and TTIP negotiations The EU is currently in the midst of a protracted negotiation over TTIP. It was first pursued in the 1990s, then 2007, and a new round started again in 2013. Brexit and Donald Trump’s elections to the US Presidency have, however, for now stalled progress. The EU began negotiations over CETA in 2009. An agreement was signed in 2014 and ratified by the EU Parliament in early 2017, and is at the time of writing awaiting ratification by all the national parliaments of the EU countries. In Canada, both the House of Commons and Senate adopted it in 2017. Much of the negotiations on both deals have been kept secret: This, however, has not prevented the Commission from invoking, from the earliest phases and in various forums, an array of ‘European’ values that distinguish Europe from North America and from presenting itself as the institutional entity uniquely positioned to protect those values on the world stage. Those efforts were especially prevalent in the area of food and technology. To investigate these, we should first note that, by the time the negotiations on TTIP (the latest round) and CETA were launched, divergent approaches between the EU and North America had been developing for some time. Table 2 highlights those different trajectories. As Table  2 indicates, the regulatory regimes in the EU in the years leading up to TTIP and CETA can be described as restrictive and ‘precautionary’: If harm is a possibility, and if there is no scientific consensus on the issue, the product should not be made available. Priority has therefore been given to consumer health, animal rights, and product quality over business and industry wants. GM products became effectively banned unless positive scientific proof of their harmlessness could be rendered. A moratorium was put into place for all new genetically modified organisms (GMOs) in 1999 (which was eventually replaced with a very restrictive regime four years later), and member states retain extensive rights to introduce their own additional restrictions. Such a remarkably tight regulatory regime did not come easily: The member states had different domestic traditions and perspectives. Early on, in countries with strong eco-farming practices or regional food specialties (such as France, Italy, and Austria), environmental and consumer associations shaped political opinion and voting at the EU level against GM foods (Kurzer and Cooper 2007). But in countries

1

Our argument thus intersects with recent work on the Commission’s use of cognitive ‘frames’ to legitimate its own authority (Thomas and Turnbull 2017) and scholarship on the emergence of a EU identity through political symbolism, narratives, and debate (Lucarelli et al. 2011).

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Affirming Europe with trade: deal negotiations and the making … Table 2 Food and technology in the EU and North America

EU

Regulatory Principles

Outcomes

‘Precautionary’ principle for GMOs prioritizing consumer and environmental health: use allowed if proved harmless (Bernauer 2003: Vogel 2003; Scholderer 2005) Complex GMO approval process involving the European Food Safety Agency, member states, and Commission’s Appeal Committee For hormone beef, protection of animal welfare, food quality, consumer health and safety (Johnson 2015)

Only 58 GMOs approved for use; only 1 approved for cultivation Between 1999 and 2003, a moratorium on GMO approvals. Afterwards, a very strict approval process (European Parliament, 2015) As of 2015, member states (a) can ban cultivation of any GMO, (b) have final say on which GMOs are sold in own territory (Geelohed 2016) As of 1989, ban on all importation and production of hormone (natural or synthetic) treated meat (Kerr and Hobbs, 2002; Vogel 2003)

North America Market prioritization, with GMOs and hormone-fed beef regulated as any other food product

Liberal use of GMOs and hormones in food supply chain

where neither eco-farming nor food specialty was in place and the biotech industry had a bigger stake in GMOs (like the UK and the Netherlands), political opinion favored GM foods. The EU responded by ultimately favoring the first set of countries and issuing regulations (such as Directive 90/220/EEC) centered on the precautionary principle (Scholderer 2005; Bernauer 2003, p. 45), which was in turn accompanied by strict labeling requirements for approved GMOs (European Commission 2016a). An even stricter approach developed with regard to hormone beef: Following the 1989 mad cow crisis, the EU moved to ban altogether hormone beef from its food supply chain.2 In contrast, during the same time period, the USA and Canada developed liberal regimes toward both GMOs and hormone beef. The approval process is relaxed. In the USA, GMOs fall under the FDA classification of ‘generally recognized as safe’ and do not require pre-market approval or special labeling unless their level of toxicity is unusually high or they contain reduced levels of important nutrients.3 Thus, GM foods are treated like any other food product—something that also applies to

2

The Commission’s 2002 European General Food Law laid the foundations on food and feed by stating that European citizens should ‘have access to safe and wholesome food of the highest standard’ (European Commission 2016b). This was preceded by a regulation proposal on feed, adopted by the Commission in December 2001, establishing ‘animal and public health as the primary objective of EU feed legislation’ (Commission of the European Communities 2000). Article 100a EEC of the Single European Act also mandated a ‘high level of protection’ in light of ‘any new development based on scientific facts’ (Coggi and Deboyser 2016) when it comes to environmental or consumer protection, health, and safety. 3 For a summary of the US approach, see http://sitn.hms.harvard.edu/flash/2015/same-science-differentpolicies/.

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Canada. The direction is opposite the EU’s: Unless something can be proved harmful, it is allowed. As to hormones, they must be approved by the relevant agencies in the USA (USDA) and Canada (the Veterinary Drugs Directorate). The threshold is comparatively low, and both countries have approved the same six hormones.4 These differences have led to clashes between the EU and the USA and Canada well before the recent TTIP and CETA negotiations. In the 2000s, the USA and Canada turned to the WTO to complain about the EU’s GMO moratorium, with very limited success (Library of Congress 2015). Regarding beef hormones, in 1989, in response to the EU’s ban of hormone beef, the USA imposed a $93 million tariff on selected EU imports. In 1996, the USA and Canada took the EU before the WTO and won the right to impose sanctions on EU products (Charlier and Rainelli 2002; Johnson 2015). In 2004, the EU opened its own dispute at the WTO against North American sanctions. The WTO found all three parties at fault (Johnson 2015). After the USA escalated tariffs in 2009, Canada, the USA, and the EU signed an MOU to stop using sanctions over other foods to address the issue.5 But the conflict over hormone beef remains fully in place: The EU does not import it. These events set the stage for the TTIP and CETA negotiations and, more specifically, for the Commission’s assertion—or in fact ‘uploading’—of European values and its own role in protecting those values. In both cases, the Commission has spoken unambiguously about Europe’s needs, beliefs, and traditions: Food quality, environmental protection, plant health, consumer health and safety, animal welfare, protectionism, and precaution define Europe’s standpoint. There will be little compromise. Indeed, as EU Trade Commissioner Cecilia Malmström put it immediately after the Brexit referendum, the debates on TTIP have ‘focused very much on how to reconcile preserving identity and our individuality.’ ‘Identity,’ she added, ‘hasn’t always been part of trade negotiations, but [is] very much today’ (emphasis added).6 The Commission has accordingly invoked European values that it will protect: If the North Americans have caved to big business, likely because of a lesser appreciation for food quality, the Commission will fight to ensure Europe will stick to its core standards and norms. This stance had already been taken as early as 2000, after the first attempt at TTIP.7 Press releases by Karel De Gucht, when he was EU Commissioner for Trade, offer key evidence in this regard. Two from 2014 concerned TTIP. In the first, in January, De Gucht stated that the gains Europe will experience from the TTIP will only exist if Europe ratifies ‘the right deal,’ specifically a deal that Europeans ‘consider worth supporting. A deal which pursues our interests and preserves our values’ (European Commission 2014a). Then De Gucht addressed GMOs and hormone beef

4

Estrogen, progesterone, testosterone, zeranol, melengestrol acetate, and trenbolone acetate. See http://trade.ec.europa.eu/doclib/press/index.cfm?id=685 and http://trade.ec.europa.eu/doclib/press /index.cfm?id=126. 6 See the transcript section of https://www.c-span.org/video/?c4608594/cecilia-malmstrom-says-tppnegotiations-will-move-forward-brexit-vote&start=561. 7 In a white paper, the Commission stated that ‘the key principle for imported foodstuffs and animal feed is that they must meet health requirements at least equivalent to those set by the Community’ (Commission of the European Communities 2000). 5

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directly by stating that ‘If—as a result of the negotiations—the EU was going to lower standards of protection for citizens regarding food or the environment … if we were going to abandon our policy on genetically modified food or on beef hormones … That would indeed be unacceptable’ (European Commission 2014a). In the second press release, in February following a meeting with US Trade Representative Michael Froman, De Gucht further affirmed the Commission’s stance: ‘No standard in Europe will be lowered because of this trade deal; not on food, not on the environment.’ He gave a personal assurance that the TTIP would not become a ‘dumping agreement’ (European Commission 2014b) and then proceeded with these remarkable words: ‘Yes, there will be areas where we will not be able to agree. That’s ok. Hormone beef is such an example. Let me be very clear again: we do not even discuss hormone beef in TTIP and we will NOT at any point in our discussions. Why? Because hormone beef is prohibited in Europe, and we do not intend to change this. And our American partners know this very well.’ In the same press release, De Gucht added that ‘our standards on consumer protection, on the environment … and on food are not up for negotiation’ and proceeded to assert that ‘there is no “give and take” on standards in TTIP.’ A flurry of other public statements and initiatives preceded and followed these statements. One, by Trade Commissioner Malmström, stressed that the TTIP will not change European laws on hormone beef or GMOs: ‘negotiating  TTIP responsibly,’ she noted, ‘means recognising that a closer alliance with the United States will help protect European values in a changing world.’ It also means ensuring that ‘European values [are] more protected not less so’ (Malstrom 2016). In the same year, the Commission released on its Web site a fact sheet titled Food Safety and Animal and Plant Health in TTIP. It reminds readers that the EU has a strict regulatory regime with respect to GMOs, and that ‘this will not change through TTIP.’ Regarding animal welfare, the sheet declares that ‘TTIP will not affect EU animal welfare laws.’ The EU, it adds, will discuss animal welfare with the USA ‘so as to promote the highest standards of animal welfare possible.’8 And, of course, the ban on hormone beef will remain. To be sure, these assertions by the Commission have not gone uncontested. Groups such as Global Justice Now have questioned their sincerity and the Commission’s ability to deliver on its promises (Inman 2015). Internally, member states took different stances in EU decision-making bodies such as the Council of Ministers, where there is a split regarding the cultivation of GMOs (Dudek 2015, p. 227). This should be expected: Any attempt to articulate ‘European’ values, by any entity, will inevitably be questioned. The Commission’s rhetoric should therefore be seen as an effort to defining matters, rather than an articulation of pre-accepted ideas. In this context, when it comes to identity, the Commission has presented itself as the institutional entity defending and advancing those values. Statements have reminded the public that the EU sees as ‘part of its actual mission’ a commitment to high food standards (Coggi and Deboyser 2016). As De Gucht put it in 2014, the

8

See: http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153004.3%20Food%20safety,%20a+p%20 health%20(SPS).pdf.

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‘standards’ at play in the TTIP negotiations ‘are already being set by our different regulatory agencies on both sides of the Atlantic, not by TTIP negotiators. What we aim to achieve in TTIP is that these regulatory agencies coordinate more closely with each other’ (European Commission 2014b). Hence, the Commission has directed people to a TTIP-dedicated Web site with a Q&A space.9 The central message focuses on values and its mission: ‘basic laws, like those relating to GMOs … are there to protect human life and health, animal health and welfare, or environment and consumer interests [and] will not be part of the negotiations’ (Harvey 2014). With regard to American hormone-fed beef, it adds that the ‘tough EU laws designed to protect human life and health, animal health and welfare, or the environment and consumers will not be changed because of TTIP.’ Thus, as one official remarked to The Guardian in 2014, ‘the EU has its red lines in the negotiations and GMOs is one of them’ (Harvey 2014). In related statements in media and Internet outlets, officials have stressed the representative role of the Commission and its connection to the people. In 2015, for instance, in response to lobbying from American organizations such as the National Grain and Feed Association and the American Soybean Association (Harvey 2014), and to the statement by US Trade Representative Michael Froman claiming his country was ‘very disappointed’ at the Commission’s move to allow national bans of the cultivation of GMOs, Vytenis Andriukaitis, the Commissioner for Health and Food Safety, said he was ‘pleased to deliver on one of the important commitments taken by this Commission.’ Indeed he added, the EU executive ‘has listened to the concerns of many European citizens’ who, he said, were in line with the positions of their own governments (Jacobsen 2015). Similarly, Commissioner for Trade Malmström wrote on a May 2016 blog post that the EU’s negotiating team consults regularly with an advisory group consisting of representatives from every type of TTIP stakeholder, including public advocacy groups, and health and environmental organizations (Malstrom 2016). In the same spirit, Commissioners have reminded the public of their 2013 Public Consultation study involving roughly 43,000 EU citizens on the topic of food preference: The Commission should be seen as connected to the people. The Commission knows what Europeans care about: 83% of participants reported eating organic food regularly, with half saying that they try to buy organic as much as possible. The reasons for their appreciation of organic foods are that 83% worry about the environment, 80% want to avoid pesticide residues, 63% believe organic products are healthier, 55% think organic production respects animal welfare, and 90% prefer GMO-free products. Furthermore, 67% reported that animal welfare standards should be strengthened for both organic and non-organic farming (Directorate-General for Agriculture and Rural Development 2013). The negotiations over CETA have followed a similar pattern. The Commission has refused to open Europe to ‘chemically washed’ meat products or non-authorized GMOs. Leading up to the negotiations, it made public the EU–Canada Trade Negotiating Mandate in 2009. It stated that while the objective is to expand market access

9

See: http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/questions-and-answers/index_en.htm.

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it must be done without undermining public, animal, and plant health (Council of the European Union 2009). This was especially true in the realm of GMOs and hormone beef. This must be so, De Gucht stated, because European legislators ‘will not in the end approve a trade deal that undermines our European values or the social standards we have built over so many years’ (European Commission 2014a). Though its rhetoric was again contested, as with the TTIP, by various stakeholders,10 the Commission praised its own accomplishments at the conclusion of the deal. ‘CETA ensures,’ it stated, that ‘economic gains do not come at the expense of consumer health and safety.’ It continued by describing its future aims: CETA  will not affect food-related or environmental regulations in the EU. Canadian products can only be imported and sold in the EU if they fully respect the relevant European regulations - without any exemption11 … Both the EU and Canada will keep the right to regulate freely in areas of public interest such as environment, health and safety (European Commission 2016c). The conclusion from the above is straightforward. Over the years, the Commission’s transatlantic negotiations on food have been consistent with preexisting EU regulatory principles and have helped it assert for itself an institutional role that is clearly grounded in European values (Acuti 2009).

Cutting edge and efficient: the EU Commission and the pursuit of the internal digital single market As with GMOs and hormone beef, the Commission’s activities in the DSM space, despite their technical nature, have also been laden with cultural and symbolic material. This time, however, the language emphasizes rather different values: more forward-looking, globally oriented, and competition-driven. The Commission has touted the ideals of seamless national borders, efficiency, and consumer and business freedom—values opposite those invoked during the TTIP and CETA food negotiations. This is explained, at least partly, by the absence of any long-held domestic regulatory traditions in the area of digital services: The Commission has worked with a relative tabula rasa other than some national, but not deeply rooted, protectionist tendencies. In the process, it has positioned itself as the promoter of progress in Europe, eager to build a world-class digital marketplace. The DSM effort was launched in 2015. The Commission envisions an online space where people and businesses can trade and innovate, and where exchanges are secure and inexpensive. From the start, its language has evoked ideas of ‘openness,’

10

See, for instance, the protests during the deal’s October 2016 signing (https://www.rt.com/news/36474 3-ceta-canada-eu-signed-protest/) and the months leading up to it (http://www.bbc.com/news/world -europe-37450742). 11 Thus, CETA granted Canada preferential access to the EU for its own hormone-free beef, with expanded export quotas and the elimination of a 20% tariff (Canadian Cattlemen’s Association 2013).

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‘competitiveness,’ and the need to ‘transcend national borders.’ The primary online gateway to the DSM and the Commission’s efforts thus states that: the internet and digital technologies are transforming our world. But existing barriers online mean citizens miss out on goods and services, Internet companies and start-ups have their horizons limited, and businesses and governments cannot fully benefit from digital tools. It’s time to make the EU’s single market fit for the digital age—tearing down regulatory walls and moving from 28 national markets to a single one.12 ‘In a Digital Single Market,’ reads an accompanying Commission press release, ‘there are fewer barriers, and more opportunities: it is a seamless area where people and businesses can trade, innovate and interact legally, safely, securely, and at an affordable cost, making their lives easier’ (European Commission 2016d). Several Commission officials have voiced similar ambitions. In early May 2015, for example, Commission President Jean-Claude Juncker expressed his hopes for ‘pan-continental telecoms networks, digital services that cross borders and a wave of innovative European start-ups. I want to see every consumer getting the best deals and every business accessing the widest market—wherever they are in Europe’ (European Commission 2015a). Andrus Ansip, Vice President for the DSM, explained in 2015 that ‘Europe’s online market is really fragmented. We have 28 countries with 28 different sets of rules. We need to tear down those barriers’ (Scott 2015). In addition, Ansip noted that ‘as companies aim to scale up across the Single Market, public e-services should also meet today’s needs: be digital, open and crossborder by design’ (European Commission 2016e). From the outset, Commissioners have also spoken about Europe meeting its ‘full potential,’ and thereby being ‘globally competitive.’ Günther H. Oettinger, Commissioner for the Digital Economy and Society, reasoned that: Europe has a very competitive industrial base and is a global leader in important sectors. But Europe will only be able to maintain its leading role if the digitization of its industry is successful and reached fast. Our proposals aim to ensure that this happens. It requires a joint effort across Europe to attract the investments we need for growth in the digital economy (European Commission 2016e). Consistent with this, the Commission has monetarized the DSM’s benefits: Integration will contribute 415 billion euros and hundreds of thousands of jobs to the economy (European Commission 2016d). In practical terms, it has clustered initiatives around three ‘pillars’: (1) better access for consumers and businesses to digital goods and services, (2) shaping the right environment for digital networks and services to flourish, and (3) creating a dynamic European digital economy and society. Let us consider the language and positioning around each pillar.

12

See http://ec.europa.eu/priorities/digital-single-market_en.

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First pillar: access to digital market Under the first pillar, specific initiatives have focused on creating a single European telecommunications market, establishing EU-wide Internet neutrality rules, increasing cross-border e-commerce sales, tackling geo-blocking, consolidating fragmented consumer contract laws, and making cross-border parcel delivery more affordable. Invariably, officials have welcomed the approval of laws or early drafts by noting the benefits they will generate for consumer and business freedom, efficiency, and the dismantling of harmful national borders. We examine some of that language here and the related positioning of the Commission as the entity capable of advancing those goals. A Commission press release announcing several new initiatives in 2015 on telecom and net neutrality asserted, for instance, that ‘these common EU-wide internet rules will avoid fragmentation in the single market, creating legal certainty for businesses and making it easier for them to work across borders’ (European Commission 2015b). Roaming charges were set to end starting in June 2017. Commissioner Oettinger introduced the new rules by stating that ‘I welcome today’s crucial agreement to finally end roaming charges and establish pragmatic net neutrality rules throughout the EU. Both are essential for consumers and businesses in today’s European digital economy and society’ (European Commission 2015b). Avoiding ‘fragmentation,’ being ‘pragmatic,’ recognizing a ‘European dimension:’ These are praised values in the DSM space. In the process, the Commission has emphasized that it has acted as the engine behind these initiatives: as the modernizing entity willing to take the initiative. As Ansip proclaimed, ‘Europeans have been calling and waiting for the end of roaming charges as well as for net neutrality rules. They have been heard’ (European Commission 2015b). Regarding e-commerce, in December 2015 the Commission presented two proposals designed, it said, to tackle legal fragmentation and boost consumer freedom and trust. Věra Jourová, the Commissioner for Justice, Consumers and Gender Equality, for instance, announced that ‘harmonizing contractual rights throughout the EU will facilitate the supply of both digital content and goods across Europe. Consumers will benefit from simple and modernized rules; businesses from more legal certainty, and cheaper and easier ways to expand their activities. This in turn will bring more choice at competitive prices to consumers’ (European Commission 2015c). Ansip in turn added that these proposals ‘will give more rights to consumers on-line—allow them to enjoy products and services from other EU countries in full confidence. Businesses, especially the smallest ones, can grow across borders at less cost, with a common set of EU rules instead of a patchwork of national laws’ (European Commission 2015c). The Commission monetarized the benefits with impressive figures (European Commission 2015c). Additional measures to boost e-commerce followed: Unjustified geo-blocking would end, while cross-border parcel delivery would become more affordable (European Commission 2016f). Again, the Commission made use of value-laden language. Ansip remarked that ‘all too often people are blocked from accessing the best offers when shopping online or decide not to buy cross-border because the delivery prices are too high … We want to solve the problems that are preventing consumers 43

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and businesses from fully enjoying the opportunities of buying and selling online products and services’ (European Commission 2016f). Elżbieta Bieńkowska, Commissioner for the Internal Market, Industry, Entrepreneurship and SMEs, stated in parallel that ‘discrimination between EU consumers based on the objective to segment markets along national borders has no place in the Single Market. With clearer rules, better enforcement and more affordable cross-border parcel delivery, it will be easier for consumers and companies, especially SMEs, to make the most of the EU Single Market and the cross border e-commerce’ (European Commission 2016f). Geo-blocking will be made illegal and price transparency will become a priority (European Commission 2016g). What have all these initiatives under the first pillar suggested about the Commission, and the EU institutions more broadly, as entities representing Europe and its people? The overall package, Oettinger reasons, shows that the European Union can deliver tangible results to improve the daily life of Europeans. Roaming charges will soon be old memories and we will get for the first time ever net neutrality rules in EU law. These rules protect the right of every European to access the content of their choice, without interference or discrimination. They will avoid fragmentation in the single market, creating legal certainty for businesses and making it easier for them to work across border… Digital challenges need strong action at the European level, and we should continue in this direction to create a Digital Single Market. The EU, in other words, operates at the correct scale to address the challenges of the moment. Thus, as Ansip put it, the EU activities demonstrate that ‘the voices of Europeans have been heard’ (European Commission 2015d) and that the EU, above all, should be entrusted with their advancement.

Second pillar: the right business environment The second pillar centers on supporting digital networks and services. In terms of institutional roles, action by the Commission here is depicted as a must. As a 2016 Commission press release put it, ‘several EU Member States have already launched strategies for the digitization of industry. But a comprehensive approach at [the] European level is needed to avoid fragmented markets and to reap the benefits of digital evolutions’ (European Commission 2016e). The thrust to modernize Europe must be at the EU, not national, level. Ansip affirmed as much when stating that ‘I want online platforms and the audiovisual and creative sectors to be powerhouses in the digital economy, not weigh them down with unnecessary rules. They need the certainty of a modern and fair legal environment: that is what we are providing’ (European Commission 2016h). The EU, not its member states, operates at the right level to offer this. Thus, as Bieńkowska stated, ‘the digital economy merges with the real economy. We need leadership and investment in digital technologies in areas like advanced manufacturing, smart energy, automated driving or e-health’ (European Commission 2016e). That leadership will come from the EU. Reprinted from the journal

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In terms of values, the Commission has employed symbolically laden language around a number of initiatives: reforming European data protection legislation, digitizing public services, and updating the Audiovisual Media Services Directive. With respect to the first initiative, it negotiated in April 2016 two reforms to ensure cross-national uniformity of data protection and thus advance consumer and business freedom. As Jourová remarked, today we deliver on the promise of the Juncker Commission to finalize data protection reform in 2015. These new pan-European rules are good for citizens and good for businesses. Citizens and businesses will profit from clear rules that are fit for the digital age, that give strong protection and at the same time create opportunities and encourage innovation in a European Digital Single Market (European Commission 2015e). Ansip described in parallel the legislation as follows: today’s agreement … will remove barriers and unlock opportunities … With solid common standards for data protection, people can be sure they are in control of their personal information. And they can enjoy all the services and opportunities of a Digital Single Market. We should not see privacy and data protection as holding back economic activities. They are, in fact, an essential competitive advantage. Today’s agreement builds a strong basis to help Europe develop innovative digital services (European Commission 2015e). Monetary and efficiency benefits for these initiatives, set to take place in 2018, were again touted. Businesses that handle personal data, for instance, will only have to interact with one supervisory authority (European Commission 2016i). Notifications, a formality costing businesses 130 million Euros annually, will be eliminated. And even police forces will save time and money, since information will be exchanged more easily (European Commission 2015e). Similar language has surrounded the Commission’s move to digitize industry and public services. In April 2016, Ansip pronounced that ‘the industrial revolution of our time is digital’ (European Commission 2016e). A string of measures put forth in April 2016 were presented as capable of mobilizing 50 billion Euros in investment—both public and private—expected to generate major savings of time and money (European Commission 2016e). Interestingly, the Commission has faced more of a thematic challenge around the third initiative: the Audiovisual Media Services Directive. The directive protects European culture by requiring on-demand providers to promote European works. European TV broadcasters currently invest roughly 20% of their revenue in European original works; on-demand providers only invest 1%. The new rules would require these on-demand providers, such as Netflix and iTunes, to ensure 20% of their catalogues have European content, and to promote European works in their special offers. TV broadcasters must continue to air European content in 50% of their viewing time (European Commission 2016j). The proposed laws could be seen as protectionist (not unlike with food) and as departing from the market-minded perspective present in all the other initiatives (and the three pillars more generally). 45

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Yet here, too, the Commission has voiced a more progressive and market-friendly stance. The tactic involves presenting the requirement for European works as one promoting diversity and ultimately consumer freedom. As remarked in a May 2016 factsheet, ‘strengthening the promotion of European works for on-demand services will lead to a broader and more diverse offer for Europeans. This will have a positive impact on cultural diversity and bring more opportunities for European creators’ (European Commission 2016j). Consumers increasingly want on-demand services. Oettinger, understanding the shift, explained, the way we watch TV or videos may have changed, but our values don’t. With these new rules, we will uphold media pluralism, the independence of audiovisual regulators and will make sure incitement and hatred will have no room on video-sharing platforms. We also want to ensure a level-playing field, responsible behavior, trust and fairness in the online platforms environment, our today’s [sic] Communication sets out our vision for that (European Commission 2016h).

Third pillar: growth potential The Commission has needed fewer twists of language in the case of the third pillar. The objective, it claims, is to maximize the growth potential of the digital economy and society, primarily by exploiting European-wide big data and cloud services, and ensuring the general population is educated enough to utilize a digital economy. The Commission has already presented a blueprint for the creation of a new big data infrastructure—one that can leverage the research output of scientists across the EU. The infrastructure will consist of two components. The first is the European Open Science Cloud. All of Europe’s 1.7 million researchers and 70 million science and technology professionals will be able to store and share their data in the same virtual environment together (European Commission 2016k). The second is the European Data Infrastructure, which essentially acts as the backbone to the European Open Science Cloud. Terms like ‘efficiency,’ ‘productivity,’ and the transcending of ‘borders’ have been evoked on this front. As Carlos Moedas, Commissioner for Research, Science and Innovation, put it, ‘our goal is to create a European Open Science Cloud to make science more efficient and productive and let millions of researchers share and analyse research data in a trusted environment across technologies, disciplines and borders’ (European Commission 2016k). Oettinger echoed these sentiments: ‘The European Cloud Initiative will unlock the value of big data by providing world-class supercomputing capability, high-speed connectivity and leading edge data and software services for science, industry, and the public sector.’ The new infrastructure, in turn, will benefit more than just the European research community. According to the Commission, ‘Public services will benefit from reliable access to powerful computing resources and the creation of a platform to open their data and services, which can lead to cheaper, better and faster interconnected public services.’ Relatedly, businesses, and particularly SMEs, ‘will have cost effective and easy access Reprinted from the journal

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to top level data and computing infrastructure, as well as a wealth of scientific data enabling data-driven innovation’ (European Commission 2016k). And, with this pillar too, the Commission has presented itself and the EU more broadly as the only actors that can help Europeans capitalize on technological advances. Europeans have needs, and the EU responds. As Moedas noted, ‘we listened to the scientific community’s plea for an infrastructure for Open Science and with this comprehensive plan we can get down to work. The benefits of open data for Europe’s science, economy and society will be enormous.’ With the EU’s help, because of ‘this initiative, our ambition is to be in the global top-three in high performance computing by 2020’ (European Commission 2016k).13

Conclusion As with traditional nation states, the EU Commission’s affirmation of a European political identity has involved more than policymaking and other activities through coordinated and cohesive institutional mechanisms. It has also entailed the expression of distinct values. We have considered the Commission’s assertions in two very different trade-related areas: the TTIP and CETA negotiations in the area of GMOs and hormone beef on the external front, and the DSM on the internal market front. We noted divergent discursive approaches. In the case of the TTIP and CETA, the Commission has expressed a commitment to food quality, consumer health, animal welfare, and environmental protection. In the process, it has positioned itself as the protector—against North American big business—of traditions and long-standing approaches to cultivation and food. In the case of a DSM, by contrast, the Commission’s language has been more progressive: It has presented itself as uniquely positioned to bring its member states up to speed with the realities of a fast-changing, global marketplace where efficiency, seamless national borders, and consumer and business freedoms are essential for competing. The findings thus highlighted, in line with the insights of economic sociology, both the cultural and symbolic materials that trade inevitably necessitates as well as the malleability and flexibility of that material. Put simply, trade is never purely an economic matter, and the specific type of cultural and symbolic material that is bound to accompany it is open to articulation and specification. This, of course, offers opportunities for self-definition but also challenges: Indeed, as we learned, the Commission can adopt rather contradictory approaches even as it is ultimately aiming, in economic terms, for the establishment and promotion of European-level standards and goals. If too prevalent or extreme, these differences might prevent the EU from asserting itself, with clarity, in the world and across its

13

The EU’s initiatives on the DSM have largely been praised for their transparence and vision. However, some criticisms—albeit much less vocal than with food—have been raised. While the Open Science Cloud, for instance, has not attracted many objections (see https://www.nature.com/news/don-t-let-europ e-s-open-science-dream-drift-1.22179), the choice of Elsevier—a for-profit company that has historically benefited from restricting access to scientific data unless users pay—as monitor of the database has irked some observers (see, for instance, Tennant 2018).

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population—something that has certainly plagued the EU generally over time (see, for instance, Schmidt 2014 and Meunier and Nicolaïdis 2006, but for a different perspective Macaj and Nicolaïdis 2014) and that EU officials do not seem particularly cognizant of. Ultimately, the EU’s political profile, to succeed, will need to be easily graspable and recognizable. We noted that the Commission’s stance on TTIP and CETA has reflected established protectionist traditions around food within the member states and at the EU level. In the case of the DSM, by contrast, the Commission, operating in a much looser historical context, has adopted a more market- and future-oriented competitive discourse and set of policies. Preexisting regulatory regimes at the national and EU levels, then, have influenced the EU’s trade positions. But, of course, this is not to say that other factors are irrelevant when it comes to EU trade policy. The strategic or opportunistic behavior by the Commission itself, the preferences of domestic and internal political actors, the bureaucratic logic of the EU itself, and whether the effort concerns external versus internal trade likely all play a role. The papers in this special issue, even if not about trade policy, point as well to other possible drivers: EU institutions besides the Commission shape how policies are presented, while varying levels of EU supranational competence across policy areas also matter. Future research could examine all these factors in more detail. In closing, it is important to recall how, during the TTIP and CETA negotiations, the Commission’s discourse has not gone unchallenged in the public sphere or internally within the EU itself. This suggests that rhetoric about values by the Commission should be seen as efforts to define a vision, rather than reflecting definitive or unquestioned views of Europe. Thus, the extent to which the Commission’s efforts are in practice successful remains a question in need of further investigation. This applies to both the values it promotes and the sort of roles it claims for itself.

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Francesco Duina is Professor of Sociology at Bates College (USA) and Honorary Professor of Sociology at the University of British Columbia (Canada). Ezekiel Smith is an undergraduate student at Bates College (USA) majoring in Economics and Environmental Studies.

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Comparative European Politics (2019) 17:512–529 https://doi.org/10.1057/s41295-019-00170-9 ORIGINAL ARTICLE

Transforming identity in international society: the potential and failure of European integration Thomas Diez1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract This paper relates the theme of integration and identity to the fundamental question of political organisation. It starts from the premise that regional integration contains the potential to transcend the organisation of societies in mutually exclusive territorial containers. Against this, the work of David Mitrany and Hedley Bull cautions against too much optimism: in Mitrany’s case because the reinsertion of territory in regional integration; in Bull’s case because of the power of the existing rules of the society of states. The paper develops these arguments and makes a plea for taking them serious while still upholding the transformationalist promise of integration. It argues that the potential and problems of the identity-transforming effects of integration become visible in particular at regions’ borders. In the case of the EU, its involvement in the Cyprus and Ukraine conflicts is instructive. In both cases, the paper shows how interested parties within the EU and in the conflict cases themselves, as much as the political effects of seemingly technical rules, have played their role in the reproduction rather than the transformation of conflict identities. This ultimately raises the question of how we imagine regional integration projects to relate to each other without replicating the territorial boundaries of nation states. Keywords Identity · Integration · Borders · Orders · Cyprus · Ukraine · Conflict transformation · European Union

* Thomas Diez [email protected] 1

University of Tübingen, Tübingen, Germany

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Introduction: integration and the challenge of identity and borders 1

To what extent does regional integration challenge or rather replicate prevailing conceptions of political identity? The contributions to this special issue focus on the ways in which EU institutions engage in the construction of an EU identity. They demonstrate that these identity constructions tend to follow modernist lines: the instruments and mechanism used, the symbols invoked are not that different from the attempts to forge state identities. Yet if integration does not make good on its potential to alter the territorial inside/outside conceptions of identity, what would be its significance? In this piece, I argue that we cannot fully understand the construction of EU identity without including an analysis of EU foreign policy, and without taking into account the linkage between identity, borders and bordering practices. Identity, following the introduction to this special issue understood as “the articulation of political values and norms that are claimed to be fundamental, shared and different from other polities” (Saurugger and Thatcher, this volume), is intimately tied to borders (Albert et al. 2001). Borders construct identities, setting self and other apart. They define the reach of political orders, and the values and norms enshrined in their rules. I claim that EU engagement with its Near Abroad suggests that the transformative effect of EU policy at its own borders on the basic structure of political identities is limited. Indeed, rather than contributing to a fundamental change of how we understand political identities, the EU, or those representing the EU and its member states, seem to replicate traditional, modernist border practices. Sometimes, they do so explicitly in demarcating the EU against significant others—Russia, for instance. More interestingly, however, I also show how EU institutions, including the Commission, engage in bordering policies and thus in identity construction without necessarily intending to do so through the pursuit of functional policies with bordering implications. More specifically, my cases show how the integration into the EU market requires the implementation of specific rules and standards, which not only insert trade boundaries, but also signify a European “standard of civilisation” as part of EU identity. The focus of this paper is on how the transformationalist potential of integration is challenged at the EU’s outer borders in a situation in which enlargement is widely seen to have reached a limit, and in which therefore disputes at the border serve to articulate particular identities for the EU and its neighbourhood. My particular interest is in the resistance to the transformationalist potential and in the re-inscription of territorial identities into the prevailing understanding of the integration process. To capture this resistance and locate it within the contradictions of the present integration project, the following section revisits two core thinkers of international society,

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I initially presented this paper at the 2016 Pan-European Conference on European Union Politics in Trento, and revised versions at various conferences and workshops since. I am grateful to the other authors of this special issue, but in particular to Sabine Saurugger, Mark Thatcher and the two anonymous reviewers for their excellent, challenging and constructive comments.

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David Mitrany and Hedley Bull, both of whom, for different reasons, have been sceptical of the transformationalist credentials of European integration. While Mitrany alerts us to the internal contradictions of European integration when it comes to alternative conceptions of identities, Bull reminds us of the external constraints of articulating an alternative political order in the context of the prevailing society of states. Both of these argumentations are well known. Yet the analysis of regional integration has marginalised them, even though they allow us to reflect on the relationship of borders and identity in a way that speaks directly to some of the current problems of the EU, its emerging foreign policy, and the ambiguities that EU policy makers find themselves in between their integrationist stance and their location within a statist order (Ahrens 2018). On the back of this, Sect.  3 outlines a general theoretical approach about the formation of regional identities, borders and orders in international society. This approach takes up some tenets of strategic constructivism as it informs this special issue insofar as it takes the articulation of particular positions towards integration from within a specific context and its advocacy of specific identities and interests seriously. Yet it exceeds strategic constructivism by drawing on both a broadly critical discursive and an English School framework to question the context in which EU policymakers operate. Sections 4 and 5 then illustrate this (outline of an) approach by applying it to the cases of Cyprus and the Ukraine. I use these cases because each of them brings to the fore the problems of presently prevailing articulations of EU borders and traditional territorial identity. In the Cypriot case, this is a contested outer border emerging because of enlargement and folding an unresolved border conflict into the EU. The Ukrainian case represents a contested border beyond present, formal EU borders, but in which claims about the extent to which EU borders in practice exceed these formal borders and inscribe identities and orders beyond them are central to the dispute. In both cases, we see how the problems that Bull and Mitrany have identified constrain the transformationalist potential of integration and allow for the articulation of resistance. Such articulations in turn put forward the identities and interests of specific political actors to strengthen their position in the two conflicts on the one hand, and their position in national and EU political institutions on the other. Articulations of EU identity thus not only work towards the “inside” but have an effect on actors and conflicts beyond the EU itself—yet not always in the way this may be intended by EU institutions. These illustrating analyses then lead to a concluding plea to take the politics of EU engagement at its borders more seriously and to see it as an ongoing struggle over the appropriate political order and identity.

Limits of transformation: revisiting Mitrany and Bull In this section, I first turn to two basic challenges to the transformationalist potential of European integration by invoking two eminent thinkers of international society, David Mitrany and Hedley Bull. I derive from their works what I call the “Mitrany” and the “Bull problem”, respectively. They both tackle two core issues when 55

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it comes to the transformation of political identity and borders: How radical is the transformation of identity and borders through integration, and how likely is it that such a transformation will succeed? In the society of states, political order traditionally has been equivalent to state order. The modern territorial state was the main reference point for political identities and a container of norms and values considered to be fundamental to a society. Yet the relationship between borders and identity is never fixed. It is continuously rearticulated in a struggle over the “right” order with its appropriate borders and identity. Consider one of the core questions at the heart of political struggles at the beginning of the twenty-first century, which has been the focus of debates over EU identity as well. Do we want to live in a world of a global market in which the state and the economy have different extensions and assume a double identity of political citizen and market participant? Or do we prefer a world of nation states, in which the identities and borders are clearly defined but exclusionary? Or are there alternatives to this dichotomy? On a fundamental level, political struggle thus is about articulating a specific “node” of identity, borders and order (Laclau and Mouffe 1985). Such articulations do not have to explicitly deal with identity or borders. On a superficial level, they may advocate particular market policies or safety standards. Yet they may still invoke basic assumptions or “fundamental values” about the “true” nature of society, economy, knowledge, progress, to name but a few. In order to make their claims, such articulations must represent these values as ontological truths. Yet it is in the nature of things that values are contested. Thus, even policy statements that seem to be unrelated to matters of identity tend to continuously inscribe these values as fundamental into public discourse, and thus engage in the construction of identities (Diez 2001). Articulations of regional integration are no exception. Regional integration and the resulting governance structure as a kind of political order is a political ordering project that promotes new forms of identities and borders. “Speaking Europe” (Diez 1999) is to make claims about where Europe “is supposed to be” (Walker 2000), how it is to be legitimately organised (Jachtenfuchs et al. 1998), and what its identity is (Wodak and Boukala 2015). At the beginning of the European integration project, in the aftermath of World War II, the most radical articulation of integration constructed it as a revolutionising challenge to the traditional state order. Many in the resistance movement during the war who carried the move towards integration in the European Movement saw the nation state, with its exclusionary and revisionist tendencies, as the origin of the devastation of two world wars. They saw integration as a means to rearticulate borders and identities to transcend the order of the international society of states into an order of regions. Yet contestation over how exactly such regions were to be constructed was and remains a matter of fierce dispute. In this dispute, some advocated a wholesale transformation of international society. Let us call them transformationalists. These included functionalists for whom territory was not the appropriate reference point for political orders to produce welfare and who emphasised the role of experts and transnational interest groups. For integral federalists, overlapping identities on multiple levels necessitated the construction of loose, flexible and criss-crossing political orders within a broad Reprinted from the journal

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framework (Diez 1997). This transformationalist position embodied an ethos of integration that aims at a new order of peace in which territorial identities, and thus the linkage between fundamental values and a specific territory, no longer dominate our conceptions of the political. This does not make such an order unproblematic— it, too, privileges some identities and interests over others, and would necessitate a radical re-thinking of democracy without its state container that we have still not accomplished. Yet with the transformationalists, I share the basic critique of the exclusionary and conflict-laden effects of a territorial state order and the identities it embodies. Mitrany and Bull, although they differed widely in their conceptualisation of international society, were both sceptics when it came to the transformationalist potential of European integration. Bull is the main theorist of a pluralist international society. In his main work, The Anarchical Society (1977), he outlines the contours of an international order among states despite their coexistence within an anarchical structure, that is, in the absence of hierarchy and thus of instruments that would allow the enforcement of international law. To Bull, such anarchy does not mean that there is no society. Instead, he posits that states have common values and interests that bind them together and which they pursue through common institutions, which Bull identifies as international law, diplomacy, great power management, balance of power, and war. The main purpose of these institutions, according to Bull, is to ensure sovereignty and non-intervention. To Bull, these are core norms that all states share, and he argues that there are good reasons for these norms, as they allow the coexistence of different cultures and thus of identities within the plurality of states. A defining element of Bull’s international society is therefore the existence of sovereign states with clear and mutually recognised borders. In this world order, universal human rights claims, for instance, are mediated through states and cannot take on a legitimate significance of their own. This sets the pluralist international society apart from more solidarist conceptualisations, in which state responsibilities exceed state borders and identities, such as in the Responsibility to Protect. Consequently, Bull, as I will elaborate in a moment, although entertaining the idea of a transformationalist potential, could not envisage European integration to challenge the order of the society of states fundamentally. Instead, he thought that ultimately, this order will force the EU to become a state itself or fall apart. For Mitrany, this statist order is neither appropriate nor ethically defensible. It inhibits the free articulation of interests, is prone to violent conflict between states and prevents the fulfilment of crucial welfare needs by imposing a national structure and identity on what are essentially transnational problems. A replacement of the existing nation states with federal states on a higher level would not do away with these problems because not only would it be unrealistic to expect states and national publics to easily give up their sovereignty claims; such a federal state would still privilege the dysfunctional territorial order and think of identities as territorially bound. Mitrany (1966) thus sees the order of a “working peace system” in a subversion of national identities and state structures through functionalist arrangements, the borders of which are not set and territorially defined but fluid and dependent on functional linkages to a particular policy area. Functional identities would replace territorial ones. 57

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While the European integration project of Monnet built on these functionalist ideas, its neofunctionalist reformulation of European integration changes two important parameters. First, it ties functionalism to a particular region (rather than devising a global peace system) and thus ultimately to territory. Second, such a reintroduction of territory into political order opens up the possibility to insert a centralised authority (viz. the European Commission) to foster and “cultivate” the spill-over processes that functionalism sees unfolding between linked policy areas, thus spreading the drive towards political reorganisation to ever more policy fields. Therefore, despite being the father of functionalism, Mitrany always rejected regional integration as the wrong path towards world peace. The following quote captures his reservations: Could a European union, in the long run, benefit its own peoples if it tends in the least to split the world afresh into competing regional sovereignties? Is not breaking through that dour barrier of sovereignty the ultimate test? In a world of a hundred and more states sovereignty can in simple fact never be dismantled through a formula but only through function, shedding national functions and pooling authority in them; unless we are to give up all purpose of wide allround international sharing in the works of peace (Mitrany 1965: 145). Mitrany’s worry was that European integration would lead to the formation of a regional bloc with quasi-sovereign qualities and thus re-produce the nation state and national identities on a higher level. To him, the regional (and thus necessarily bordered) re-vamping of functionalism and the insertion of a centralised, quasifederal political structure through neofunctionalism undermined the basic idea of the organisation of politics through functional rather than territorial linkages. In identity terms, European integration thus reinserts a territorial identity in a sense of European-ness, whereas Mitrany’s peace system works because actors align along functional rather than territorial lines. Building global governance on functional linkages may seem utopian, and it may especially have done so in the 1940s and 1950s, which is why the reformulation of functionalism as a neofunctionalist European integration project seemed necessary in the first instance. Here, Hedley Bull’s scepticism towards the EU as an alternative model for international society and towards the idea of “civilian power Europe” is instructive. In his Anarchical Society, Bull (1977) introduces the idea of a “new medievalism” which he sees developing in Europe, and in which political identities and borders, and thus of political order and power, would be overlapping. However, he dismisses such a neomedievalism as a future permanent feature within international society. Ultimately, he sees the norms of the pluralist international society prevailing, and Europe, Bull forecasts, would either disintegrate or become itself like a state. For the same reasons, he rejected Duchêne’s notion of civilian power Europe, as he would have had objections to the argument’s later rendition as normative power Europe (Manners 2002). You could not, Bull (1982) argued, be a great power without some military might that would allow you to persist in the context of the Cold War. It was the member states who had that might but did not play it to their full capacity, and on what was then EC level, they would be well advised to Reprinted from the journal

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coordinate their defence activities rather than engaging in transformations of political identity. For a long time since the end of the 1980s, integration scholars were quick to dismiss Bull’s sceptical assessment of the EU’s transformationalist potential. And yes, the EU has become a widely accepted actor in international society even if it is not recognised as being on a par with states. Yet the enthusiasm of the late 1980s to early 2000s in terms of the effects of the EU on changing identities, borders and orders has at least dampened, if not evaporated. The normative power argument, in the spirit of the transformationalist integration ethos, presumes that the EU is able to shape what is considered “normal” in international society (Manners 2002: 239–240). It would do so by fundamentally altering the status of territorial borders, and thus of national (or for that matter pan-European) identities through the advocacy of an alternative order of overlapping regions in which the territorial borders of national orders and identities lose significance. But what if, rather than changing the rules of the game, Bull is right and the rules socialise the EU into the existing game? What if, rather than transcending territorial borders as such, the EU merely engages in producing “new geographies” (Casas-Cortes et al. 2013)? What if there is a “return of geopolitics” in EU external relations (Diez 2004a), and thus a return to territorial, exclusive identities? As I have outlined in the introductory section to this piece, articulations of identities, borders and orders are always contested in a struggle to achieve hegemonic status. The hegemony of one order today may cede to the hegemony of another order in the future, as in fact it has done historically: we neither live in a world of city states nor of colonial Empires anymore. Yet contestation is not equivalent to transformation: hegemonic structures may prevail; they may even be strengthened through resistance. So despite the contingency of identities and the state order, there are some aspects of the integration process which have limited the ability of the EU to change the “normal” in international politics, and instead furthered its socialisation into existing international society practices. The Bull and the Mitrany problems identify these aspects as the difficulties to make a regional order translatable into the discourse of the prevailing state order and the inconsistency of inserting a territorial dimension into functionalism. Both of these problems of regional integration provide vantage points for the articulation of resistances to the transformationalist project and thus of statist identities and orders in disputes over Europe’s borders.

Regional order, identity and border formation in international society The discussion so far suggests a number of core propositions for the development of a theoretical approach to analyse the construction of regional identities in international society. These propositions can be summarised as follows:

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1. Political identities, borders and orders form a triangle of interlinkages. Their respective meaning depends on the constructions of the other two concepts. Disputes about borders are therefore always also disputes about identities and orders. 2. Political identities, borders and orders cannot be taken as given. Instead, they must continuously be reproduced and reconstructed, or “articulated”. Such articulations are an attempt to achieve at least a temporary hegemony in which the meaning and relation between identities, borders and orders seems settled. They take place in multiple settings, and do not have to explicitly invoke conceptions of identity. The articulations of identities and borders are performed by actors with their own identities and interests, which emanate from specific, contingent and historically formed subject positions. These actors are strategic in the sense that they pursue their interests and particular constructions of identity, knowingly or not, in their advocacy of specific regional orders and borders. At the same time, their interests themselves emerge from the specific historical and discursive context from which they speak. 3. In the traditional international society, identities, borders and orders are tied to the modern territorial state so that, in ideal typical fashion at least, identities are national, borders are clear and contiguous, and the prevailing order is that of the state and institutions that states have formed in order to protect their core norms and interests of sovereignty and non-intervention. Regional integration challenges this specific rendition of political identities and borders, and the orders they support. In its most demanding version, this challenge is a revolutionist agenda to replace states with overlapping regions, but at the very least, it would involve significant steps towards a solidarisation of international society. 4. Yet this challenge to the prevailing hegemony is contested, and meets with resistance from actors both inside and outside, who continue to privilege and articulate statist conceptions of identities and thus reproduce territorial borders. Both the institutional set-up of the EU as well as the context of the presently hegemonic conception of a pluralist international society as a society of states provide resources to draw on in the articulation of regional identities, borders and orders. Supporters and contestants of transformation utilise and appropriate these discursive resources to articulate their competing visions of identities, borders and orders. These propositions require us to put the politics of border articulations at centre stage. Border policies do not simply respond to objective security demands or functional market requirements. EU engagement is not that of a doctor curing sicknesses of nationalism or economic malpractice. In these policies and engagements, EU institutions and their representatives articulate specific visions of borders, political identities and orders. Yet these articulations are contested, and other actors instrumentalise them to support their own positions and legitimise their own articulations of political identities. The following two cases illustrate how such a framework helps us to capture the complexities of EU border engagement and the construction of European identity. However, the cases also show

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how both EU and other actors do not want to or cannot escape the modernist, statist conceptions of identities, borders and orders, and the inside/outside logic it entails (Walker 1993).

Case I: Cyprus Cyprus is an instance of border and identity articulations in at least two senses. Cyprus itself constitutes the outer border of the EU towards the Middle East. This raises fundamental questions about the identity of Cyprus: Is it part of a “Western”, “Eastern”, i.e. orthodox, or “Middle Eastern” civilisation? Note that to pose this question in such a way is already a particular representation of identities as exclusive and unified, whereas in places such as Cyprus, they present us with a historically grown mix of influences from a variety of backgrounds. Yet in the debate about EU enlargement, such questions have strongly surfaced in the support or opposition to EU membership, and they did not only articulate the identity of Cyprus but also that of the EU or more broadly “Europe”. The Greek-Cypriot government thus redefined Cyprus as the cradle of European civilisation in the context of the membership campaign, rather than the mixture of West and East that it is. Against the opposition of the Cypriot Orthodox Church, and ignoring the Islamic influence on the island, the campaign emphasised ancient classic aspects and in particular the birthplace of Aphrodite—never mind that the ancient Aphrodite cult with its involvement of prostitution is perhaps not exactly what we would associate with “civilisation”. Based on this definition as a European state, Cyprus played the same rhetorical game as most of the Central and East European states, keeping the EU to its promises of a belonging to Europe and thus of membership (Fierke and Wiener 1999; Schimmelfennig 2001). Such membership claims in turn emanate from the Mitrany problem of having to determine who is in and who is out once territoriality is reinserted into a functionalist system. These articulations not only construct Cypriot identities but also European ones, and accepting Cyprus based on its classicist narrative therefore likewise asserted a specific identity of Europe as a whole, including a focus on a Hellenic-Western instead of a more plural identity. In the context of Eastern enlargement, this meant a marginalisation of Eastern orthodox and Islamic identities in the new Europe as well, which fitted and reinforced the “return to Europe” narrative and the othering of Russia in that context (Kuus 2004). Cyprus secondly presents us with a border conflict that the EU initially had little direct impact on, although the UK as an EU member state and former colonial power on the island had significant influence on the development of the conflict. The Republic of Cyprus became independent in 1960 with a consociational constitution, sharing power between Greek and Turkish Cypriots in a complex system of balance, and thus proposing a specific kind of political order that was designed to transcend identitarian divisions yet at the same time presupposed and reinscribed them (Jarstad 2001). Not being supported wholeheartedly by politicians on both sides, the constitution quickly ran into crisis, with civil unrest and atrocities, largely on Turkish Cypriots, following from late 1963, leading to one of the oldest UN 61

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peacekeeping missions UNFICYP. When the then Greek junta, together with Cypriot national terrorists EOKA-B, staged a coup to oust President Makarios, Turkey as one of the three guarantor powers of the constitution (the others being Greece and the UK) intervened militarily in the summer of 1974. This led to the partition of the island, with UNFICYP now patrolling the Green Line separating north from south. In 1983, the north unilaterally declared independence, but the “Turkish Republic of Northern Cyprus” has never been recognised by any state other than Turkey (who, in turn, does not recognise the Republic of Cyprus for violating the core premises of the 1960 constitution). The EU got involved in Cyprus when in 1990, the Republic, supported by Greece, filed a membership application. While the Commission viewed this sceptically, it eventually accepted the application in 1993, in a bargain that paved the way for the customs union with Turkey at the same time. Formal negotiations began in 1998, and Cyprus was part of the “big bang” enlargement of 2004. Hopes that there would be a solution to the conflict before membership were dashed when a majority of Greek Cypriots rejected the UN-sponsored Annan Plan, which would have introduced a new constitution of a United Cyprus Republic. Since then, legally the Republic of Cyprus (including the north) is an EU member, but the acquis communautaire is not applied in the north, although the EU has set up a number of aid programmes for Turkish Cypriots. Then Turkish-Cypriot President Rauf Denktash opened the border in 2003 (until then only tourists could cross, and only for a day, from south to north and back), and trade between north and south post-2004 has become possible through the Green Line Regulation. Yet nonetheless, the border still functions as a de facto boundary of the EU in terms of immigration and direct trade between north Cyprus and other EU countries. Such trade remains impossible because the Cypriot government has continuously vetoed the Commission’s proposal for a Direct Trade Regulation, which would have circumvented the problem of a possible indirect recognition of the TRNC because of an acceptance of state certificates for export goods. Meanwhile, the discovery of gas fields around Cyprus has opened up new possibilities for cooperation yet also for staking out territorial claims; and the election of Mustafa Akinci as new Turkish-Cypriot president has provided peace talks with a new impetus. What are we to make of EU involvement in Cyprus? Integration has evidently not led to a solution of the conflict as the advocates of membership as a “catalyst” for a solution had thought. In many ways, the border has persisted and to some extent been “normalised”. While enlargement has pushed the need to find a solution and thus contributed to the Annan Plan, the rejection of this plan has scuppered the initial idea of unification. The EU became a reference point of the regime change within the north of the island after 2001, but the actual cause was a financial crisis and adjustment policies imposed by Turkey to which Turkish Cypriots reacted with hostility. Likewise, the election of pro-solution Mustafa Akinci as President of the TRNC had less to do with the EU than with domestic developments. Meanwhile, the continued vetoing of the Direct Trade Regulation is evidence of how Greek Cypriots have used integration and EU membership to pursue their own agenda. Cyprus is thus an example of how the EU impact on borders is a lot more ambiguous and politically charged than is often assumed. Integration does open up Reprinted from the journal

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possibilities of border re-framing, and with it the reconstruction of identities, but how this happens is dependent on local actors and how they deal with these possibilities in their articulation in specific political orders. In Cyprus, the dominant positions on both sides have used the EU to support their own claims and thus reproduced the border rather than undermining it. The logics and demands of the internal market have further contributed to the continued relevance of the border. The (re)inscription of the border has also had to do with inherent if unintended effects of seemingly technical rules in relation to market integration. While liberal logic sees markets as principally unbounded, markets need organisational structures that regulate production and set common standards for consumer protection, among other things. In addition, in the absence of a truly global, all-encompassing market, market access is an issue that requires agreement on tariffs and duties and thus on borders that would function as entry points for goods. The particular importance of this issue is that market integration is a seemingly technical project at the heart of European integration, which creates a particular order focused on the market and thus, for instance, on market citizenship (Haltern 2004), and thereby also constructs a particular market identity. The fact that it was the European Court of Justice and not the member states that in 1994 decided that Turkish-Cypriot citrus fruit could not be traded in the EU without the appropriate certification by legitimate authorities is highly illustrative for a technical market understanding. This applies even though it was the Republic of Cyprus via a court case in the UK that instigated the case, and even though the member states interpreted the ruling extensively and not limited to the citrus fruit at stake (for an analysis of the case, see Talmon 2001). Yet as the Cyprus case demonstrates, the market as envisaged within a regional order is not apolitical. As the Mitrany problem suggests, the insertion of a territorial dimension into the market logic leads to the necessity to define borders and authorities, and thus to contestation over the nature of borders, the allocation of authority, and the concrete construction of political order. Thus, in the Cyprus case, the certification of goods became a major issue: Who is authorised to perform this certification? Conflict parties have used the answer to this question to reproduce their respective orders, identities and the borders between each other. The Greek-Cypriot government has vetoed the Direct Trade Regulation that would have allowed certification of goods by the Turkish-Cypriot Chamber of Commerce as undermining the sovereignty of the Republic of Cyprus, thus reproducing a particular understanding of political order on the island. Vice versa, many Turkish Cypriots see it as inappropriate that a Greek-Cypriot authority would certify their goods, thus rejecting the political order claims of Greek Cypriots and at the same time inserting their own identity and order. In all of this, the Cyprus case also shows the limitations of the transformationalist potential of regional integration. If integration is to transcend the society of states, in Cyprus it has served the opposite purpose. Cypriots have utilised it in their “discourse of recognition” (Constantinou and Papadakis 2001), reinscribing their own sovereignty and identity claims. Met with these resistances in a society of states, the transformationalist claim was pushed back, and its only hope remains for a longterm subversion of the borders (Diez 2004b). Yet in the meantime, a combination 63

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of political interests in Cyprus and some EU member states, in the context of supposedly ethnic conflict marked by a strong emphasis on exclusive identities, and in combination with the unintended, territory-reinforcing effects of a technical market requirement have led to the reification of national identities in Cyprus and the construction of a classicist–idealist identity on the EU level. This is not to say that there are not many actors on the island or in fact in the EU who consciously try to foster alternative conceptions of borders and identities on the island. Civil society actors in the Home4Cooperation in the buffer zone, for instance, have worked to envision an open Cyprus of multiple identities in spite of the de facto border (e.g. Hadjipavlou 2017, on the limitations of these efforts, see Vogel 2018). The Direct Trade Regulation was an attempt from the EU side to break through the idea of clear-cur geographies. So alternatives do exist, as my framework suggests, but the power configurations both in terms of real actors and in terms of hegemonic discourses serve to marginalise these alternatives (as Bull suggested) and continuously re-insert a territorial logic (as Mitrany warned). One of the core lessons of this case in terms of the question of how European institutions construct political identities thus is that even if they do so in an explicitly transformationalist spirit, the logic of their policies and the resistances of other actors re-impose a modernist frame.

Case II: Ukraine The case of Ukraine shares some similarities with Cyprus. As in Cyprus, the logic of market access plays an important part in the unfolding of the conflict against the deliberate efforts of EU policymakers to provide alternatives, and the technical provisions of the association agreement implied deeper questions of economic and political identity. Again as in Cyprus, a strong external actor (in this case Russia) occupies part of the territory, unrecognised by the international society. The conflict itself is also part of a quasi-colonial setting, and arises from the dissolution of the Soviet empire. It draws on existing divisions between identity groups, which however are even more contested than in the case of Cyprus, where the bifurcation of society had developed over a longer period and is marked by more obvious divisions in language and religion. And again, this is a case where local populations have instrumentalised the EU to stake out their identity and political order claims, supported by allies among EU member states who had specific interests in bringing the Ukraine closer to the EU. Yet the EU role in the development of the Ukrainian conflict differs from that in Cyprus. In Cyprus, the EU has not worsened the conflict and has reified the border at worst, and partially punctuated it at best. In the Ukraine, EU involvement, at least after the 2014 Euromaidan, has contributed to a worsening of border conflicts and to the development of new territorial and identity claims (MacFarlane and Menon 2014; Mearsheimer 2014). Because of the end of the Cold War, and as part of the broader development of enlargement, Ukraine ended up in the immediate neighbourhood of the EU, bordering EU member states. In 1994, both sides signed a Partnership and Cooperation Reprinted from the journal

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Agreement, which went into force in 1998. The Orange Revolution in the country overthrew a Russian-friendly government in 2004. The new government negotiated an Association Agreement that is heavily contested between the two sides as well as between Russia and the EU, and the Ukraine became party to the EU’s Eastern Partnership programme. In 2013, President Yanukovych put the Agreement on hold. The failure to sign the Agreement led to further heavy protests in the “Euromaidan” and yet another change in government in early 2014. The new Prime Minister Yatsenyuk signed the agreement in March 2014, with its economic parts signed in June. The implementation of the trade-related regulations of Title IV was then suspended until the end of 2015. Russia reacted by annexing the Crimea in March, followed by further insurgencies and ultimately war in various parts of Eastern Ukraine, focussed on the Donbass region. Ukraine is interesting not only in and of itself, but because it raises the broader question of EU–Russia relations at their borders of influence, and stands in marked contrast to the development in Europe’s north in the 1990s and early 2000s. There, the EU found creative solutions to the border problems raised by enlargement by establishing visa-free zones and engaging in cross-border regional cooperation projects (Browning and Joenniemi 2008), even though a degree of othering of Russia persisted (Browning 2003). This reflected a conception of more fluid and overlapping political identities in the spirit of what I have called a transformationalist ethos. The differences between Ukraine and Europe’s North are due to a variety of circumstances—the different standing of Russia in the late 2000s, the change from Yeltsin to Putin, differences between enlargement and association, and a different conflict behaviour displayed by the parties, among others. Yet even so, they highlight a development to less fuzzy, harder EU borders and thus political identities since the turn of the millennium (Sakwa 2015). Of course, on the ground diplomats still have to engage in “borderwork” (Rumford 2008) that engages in both “boundary-spanning” and “boundary-drawing” (Hofius 2016). Yet even EU diplomats in Ukraine during Euromaidan constructed the EU and Ukraine in predominantly modernist ways: with a European identity, but with an organisational mentality that “we” Europeans still have to teach them how to do things “properly” before they can fully be part of the EU (Hofius 2016: 961–964). Such a temporal ambiguity however is not a break with modernity; it rather follows long-standing practices in the society of states from the “standard of civilisation” to outright colonialism (see Nicolaidis et al. 2014). As in the case of Cyprus, the dispute over EU policy towards Ukraine culminates in a seemingly technical issue of the extension of a market area of free trade. Such issues are not normally in the focus of political attention. Yet the Ukraine case illustrates once more how such issues are not the low-politics, purely functional issues that they may seem at first sight. Instead, in such conflict situations, they may be highly politicised and heavily contested, and thus reproduce rather than overcome borders and reinscribe identities. In this case, as the conflict intensified leading up to and following Euromaidan, local actors used the association agreement to stake out their claims of Ukrainian identity and political order, a Western-liberal order and identity set against an Eastern, Russian-dominated one. Actors within the EU, such as Poland, acted as champions for Ukraine in an articulation of European identity 65

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and order claims towards the East. Meanwhile, Russia made counter-claims about this identity and order. Ukraine thus is clearly a case demonstrating the failure of the transformationalist logic of integration to actually change the norms and rules of international society. Many observers in the early 2000s still thought of Ukraine’s turn towards Europe as opening up the possibility for a post-sovereign conception of identity that would overcome the historically grown traditions in the country (e.g. Wolczuk 2000). Yet they underestimated how the pluralist conception of international society allowed actors both within Ukraine and in Russia as well as among EU member states to impose a narrative onto the conflict that saw identities as exclusive and political orders as fundamentally competing (Haukkala 2015; Kuzio 2017). As Wolczuk (2016: 70) observes, this has led to a weakening of identity differences between at least large parts of the Ukrainian political elite and the EU, while at the same time reinforcing “the geopolitical boundary” towards Russia. This problem is related to Mitrany’s argument in that the insertion of a regional dimension necessarily will lead to the inclusion of some and the exclusion of others and thus insert inside/outside logics into seemingly functional issues. In Ukraine, access to the EU market means raising new tariffs towards Russia and thus interrupt trade linkages that had developed in Soviet times—an argument accepted within the EU to the extent that trade provisions were ultimately postponed. Yet behind the question of trade flows lurks the question of where we belong and what kind of order we want. Those in favour of association articulated Ukrainian identity as western, liberal, “European”, othering a “backward”, illiberal, Eastern order, and playing into similar constructions on the EU level. Meanwhile, those resisting the association agreement engaged in the very same identity “games” from the other side. In that sense, the Ukrainian case brings to the fore all those fears that Mitrany raised towards European Integration, and it demonstrates the weaknesses of an EU that on the one hand aspires to overcome territorial borders and at the same time allows their articulation through its own self-definition as a regional actor.

Identity and the transformative challenge for EU external policy This article started from the assumption that articulations of identities, borders and orders are closely connected, and that the very ethos of integration was to break through the inside/outside distinctions of the territorial state and its reliance on exclusive identities. While the integration process may have rescued the nation state in Europe (Milward 1992), it did so in a transformed way. Member states have been increasingly enmeshed in a web of rules and regulations. The initial focus was on the transformation of borders within Europe and the newly founded European Communities—partly because that was where many saw the main problem to be, partly because the context of the Cold War provided a bordering framework that was beyond the Europeans to transform. Yet once the Cold War had ended, enthusiasm of the European Union’s potential to transform borders beyond its internal ones quickly ensued. The EU developed “fuzzy” outer borders with conceptions of overlapping and fluid identities, although analysts were quick to point out that its policies Reprinted from the journal

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at these borders were equally fuzzy, and in fact contradictory and full of inherent tensions (Christiansen et al. 2000). Furthermore, a variety of authors explored the possibility of the EU, through the promotion of integration and association, to transform border conflicts and the underpinning identity constructions, although they, too, highlighted the inconsistencies of EU policy and impact, and pointed out that conflicts at the EU outer borders may actually intensify (Diez et  al. 2006; Tocci 2007). It was fitting that in 2012, the EU received the Nobel Peace Prize. The implications of regional integration therefore exceed the region itself. The potential of integration is to alter our geographies of political identity and the borders of governance both within regions and beyond. Thus, within the normative power debate in which the EU is seen as “shaping conceptions of the normal” (Manners 2002), regionalisation is one of the norms that the EU pushes (Adler and Crawford 2006; Ahrens and Diez 2015). Ultimately, as Manners (2008: 60) contends, the ultimate litmus test for the EU as a normative power is whether it can ultimately contribute to a fundamental change in international society so that such a society is no longer made up of sovereign states and thus borders no longer function in the separation of clear-cur territories and identities and are replaced with a new kind of political order based on regions. Yet as I have shown, studying the EU engagement at its borders paints a more complex picture and shows that we need to adopt a stronger focus on the politics and contestedness of such engagement. I have argued that actors both within and outside the EU, actors use EU policies to articulate competing visions of identities and orders from their historically formed positions, and these visions ultimately often undermine the idea of a post-sovereign world. In doing so, following what I have called the “Bull problem”, actors draw on the rules of a pluralist international society that still has sufficient discursive weight to force transformationalist arguments into the background. What is more, the Mitrany problem has alerted us to the inherent tensions that arise from the insertion of a territorial logic into the functionalist integration project. Thus, EU institutions and their representatives engage in the construction of identity not only if they explicitly do so, but also if they pursue ostensibly technical policies. I have illustrated this general framework with an analysis of the cases of Cyprus and Ukraine. These have demonstrated the need to take the contestedness of the transformationalist project as well as the interest and identities of the different actors involved in these conflicts more seriously. As I have emphasised, these developments are not inevitable or teleological. While I think that the arguments of Mitrany and Bull alert us to core issues at stake in the Cyprus and Ukraine conflicts, their relevance, it seems to me, is that they draw out possible developmental paths and thus dangers that actors need to be aware of— and which, I argue, have not been considered seriously enough in the past decade. Yet this does not mean that they are a foregone conclusion. Instead, while on the one hand we must become more alert of the ways in which modernist conceptions of identity prevail, on the other hand the contingency of borders, orders and identity ought to provide us with the hope that “another Europe”, and therefore another way to think about political identities, “is possible” (Manners 2007). One of the most challenging tasks that this analysis poses thus is creative thinking about the future configuration of a regionalised world. How do we deal with 67

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potential clashes at the borders of regional security complexes? How do we establish links between regions? How can we conceptualise overlapping regions so that states do not have to decide to belong to one regional organisation only? How can EU institutions contribute to the realisation of the transformationalist potential of integration rather than constructing a modernist, exclusive European identity? I have pointed to the experience in Europe’s North to demonstrate that the EU may well draw on its own past policies in this respect. It may also learn from regional integration elsewhere, such as in South America, where, although in very different circumstances, parallel membership is more common. The resultant “spaghetti bowl” of integration has often been frowned upon by Europeanists, but perhaps we need to take such models more seriously and explore their advantages rather than focusing on their problems. This would be a long-term planning task at the priority of practitioners and academics in order to find a counterbalance to the Mitrany problem. None of this is to negate the importance of other great powers such as Russia and their impact on policy decisions. Yet for once, I find myself in agreement with John Mearsheimer (2014)—it is not all Russia’s, or for that matter Turkey’s fault— although in contrast to Mearsheimer, my argument has been based on the idea that the EU has been too realist (however implicitly) while at the same time (and here we agree) not taking Russia’s realism seriously enough. It is up to the EU as a normative power to rethink political identity, territory and governance. This implies a less technical and a more explicit political stance towards the EU’s borders and its neighbourhood and demands of our analyses to take these politics more seriously.

References Adler, E., and B. Crawford. 2006. Normative power: The European practice of region-building and the case of the Euro-Mediterranean partnership. In The convergence of civilizations: Constructing a Mediterranean Region, ed. E. Adler, F. Bicci, B. Cawford and R. Del Sarto, 3–47. Toronto: University of Toronto Press. Ahrens, B. 2018. AmbigEUity: The EU and the Solidarisation of International Society. PhD thesis, Tübingen. Ahrens, B., and T. Diez. 2015. Solidarisation and its limits: The EU and the transformation of international society. Global Discourse 5(3): 341–355. Albert, M., D. Jacobsen, and Y. Lapid (eds.). 2001. Identities, borders, orders: Rethinking international relations theory. Minneapolis: University of Minnesota Press. Browning, C. 2003. The region-building approach revisited: The continued othering of Russia in discourses of region-building in the European north. Geopolitics 8(1): 45–71. Browning, C., and P. Joenniemi. 2008. Geostrategies of the European Neighbourhood Policy. European Journal of International Relations 14(3): 519–551. Bull, H. 1977. The Anarchical Society: A study of order in world politics. London: Macmillan. Bull, H. 1982. Civilian power Europe: A contradiction in terms? Journal of Common Market Studies 21(2): 149–170. Casas-Cortes, M., S. Cobarrubias, and J. Pickles. 2013. Re-bordering the neighbourhood: Europe’s emerging geographies of non-accession integration. European Urban and Regional Studies 20(1): 37–58. Christiansen, T., F. Petito, and B. Tonra. 2000. Fuzzy politics around fuzzy borders: The European Union’s ‘near abroad’. Cooperation and Conflict 35(4): 389–415.

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T. Diez Vogel, B. 2018. Understanding the impact of geographies of space on the possibilities of peace activism. Cooperation and Conflict. https://doi.org/10.1177/001083671775020. Walker, R.B.J. 1993. Inside/outside: International relations as political theory. Cambridge: Cambridge University Press. Walker, R.B.J. 2000. Europe is not where it is supposed to be. In International relations theory and the politics of European integration: Power, security and community, ed. M. Kelstrup and M.C. Williams, 14–32. London: Routledge. Wodak, R., and S. Boukala. 2015. European identities and the revival of nationalism in the European Union: A discourse historical approach. Journal of Language and Politics 14(1): 87–109. Wolczuk, K. 2000. History, Europe and the ‘national idea’: The ‘official’ narrative of national identity in Ukraine. Nationalities Papers 28(4): 671–694. Wolczuk, K. 2016. Ukraine and Europe: Reshuffling the boundaries of order. Thesis Eleven 136(1): 54–73.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Thomas Diez is Professor of Political Science and International Relations at the Eberhard Karls University of Tübingen.

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Comparative European Politics (2019) 17:530–547 https://doi.org/10.1057/s41295-019-00174-5 ORIGINAL ARTICLE

Do central bankers dream of political union? From epistemic community to common identity Erik Jones1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract The European Central Bank (ECB) started life as a symbol of European commitment to unity and to the value of central bank independence. As such, the ECB and the euro were positive sources of identification with Europe. During the crisis, however, the role of the ECB changed. The instruments monetary policymakers used to respond to the crisis had different impacts across member states, and the decisions they took to address tensions in financial markets often appeared arbitrary. In this context, the ECB ceased to operate as a symbol of commitment to integration and central bank independence became a contested rather than a shared value. This essay explains how that transformation took place and why it is important for the constitutive role of the ECB in the European project. The argument ends with populist movements using the ECB as a symbol for negative identification. European Central Banks can only fight back by promoting some kind of European political union to shore up their unique institutional arrangement. Keywords European identity · Central bank independence · Political union · European Central Bank · Euro

The link between monetary union and political union is—to say the least—controversial. Some, like Helleiner (2002), argue that a common currency can lay the foundations for a common identity. Others, like Feldstein (1997), claim that monetary union can lead to civil war. Both arguments have merits. Advocates of the identity thesis can point to the persistence of support for the euro among those countries that have adopted it as a common currency (Otero Iglesias 2017). Advocates of the division thesis can point to the polarization in European debates around macroeconomic governance (Brunnermeier et al. 2016). The problem is finding a mechanism to convert these correlations into causation. The link between money and identity is not obvious—otherwise, we would all live * Erik Jones [email protected] 1

School of Advanced International Studies, John Hopkins University, Bologna, Italy

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in countries named after more popular payment technology like Visa or MasterCard. By the same token, the most controversial macroeconomic policies deployed by governments in the euro area existed long before the single currency and are independent of the choice for monetary union (McNamara 1998). The contrasting Keynesian traditions are one illustration; the tension between active demand management and a macroeconomic stability culture is another (Hall 1989; Vail 2010). Indeed, many of the original proponents of the euro hoped to create some kind of accommodating macroeconomic policy conversation if not an outright economic government (Jabko 2015). If they failed, it was not for want of trying. Nevertheless, there is a link between monetary union and political union that has emerged during the recent crisis. That link does not run through identity or macroeconomic policy coordination. Rather it runs through the institutions that are shared by dint of monetary integration. Central bankers have become some of the staunchest advocates of political union. You can see their support for the project in the Five President’s Report on completing Europe’s economic and monetary union:1 in the joint proposal by Bundesbank President Jens Weidmann and Banque de France Governor Francois Villeroy de Galhau to create a European Finance Minister2 and in European Central Bank (ECB) President Mario Draghi’s repeated calls for a stronger and more cohesive Europe.3 Although many central bankers disagree on specific policy measures—Weidmann and Draghi most prominently—they seem to agree on the need for stronger European governance institutions. More importantly, they argue that such institutions are necessary for the long-term viability of Europe’s monetary union. The purpose of this essay is to explore the link between monetary union and political union that runs through the central banking community. In doing so, I hope to illustrate the kind of ‘strategic constructivism’ at the heart of this collection (Saurugger 2013). I also hope to underscore a theme from the introduction to the collection about how top-level institutions seek to foster supportive identities at the popular level. My argument is that we can see a connection between monetary integration and political integration that operates despite cross-national differences in cultural identity and policy preferences. The reason has to do with the limits of monetary policy and the interdependence between money and finance. Although we tend to view monetary policymakers as a tight epistemic community that craves political independence, no central bank is an island that can be isolated from the rest of society. Hence, political union is for central bankers a means of self-defense. The problem is that central bankers have few instruments to foster political union or to mediate macroeconomic policy conflicts (Jacobs and King 2016). Their selfexclusion, both intellectual and institutional, is a weakness. Although the European Central Bank has a world-class research capability that draws upon global policy

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Five Presidents’ Report: Completing Europe’s Economic and Monetary Union. Brussels: European Commission, June 2015. 2 See François Villeroy de Galhau and Jens Weidmann, ‘Europe at the Crossroads,’ (Berlin: Deutsche Bundesbank, 8 February 2016). 3 See, e.g., Mario Draghi’s speech on accepting the Cavour prize on 23 January 2017.

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networks for the analysis of macroeconomic performance and monetary policy, it struggles to engage with stakeholders who are not already steeped in economic theory and who do not belong to the wider epistemic community. Moreover, central bankers recognize this vulnerability. Hence, we should expect to see central bankers behave more and more like politicians, particularly but not exclusively at the European level. As part of that political metamorphosis, we should expect central bankers to pay closer attention to questions of identity formation—even if they are not exactly sure what causal mechanisms connect European identity to the political union they hope to bring about. This argument has five sections. The first sets out the preconditions for central bank independence. The second explores the implications of conducting an unconventional monetary policy. The third highlights the problem of assuming responsibility for financial stability. The fourth explains why central bankers need political union as self-defense. The fifth sets out the conditions for political union to work effectively and suggests the difficulty central bankers have as advocates of more Europe.

Splendid isolation The European Central Bank embodies or encourages European identity formation through its existence and not through its activities (McNamara 1998). The fact that Europe has endeavored to construct an unprecedented multinational currency is a symbol of common commitment to the integration project among Europeans; statutory obligations imposed on the ECB as guardian of that currency reflect common European values; and the images printed on the notes and coins appeal to shared national histories and continental aspirations. In that sense, the euro as a common currency and the ECB as its institutional centerpiece are essentially political institutions. Following the themes set out in the introduction, the euro and the ECB constitute identity by representing shared values. And one of the core values they are meant to represent is the independence of monetary policy authorities from the travails of day-to-day partisan politics (McNamara 2002). The political independence of the ECB is fundamental to the European project. The European Treaties instruct the members of the governing council of the European Central Bank not to accept political guidance; those same treaties also instruct Europe’s politicians both in the member states and in European institutions not to attempt to offer guidance to the governing council of the ECB. These joint injunctions offer a very strong form of central bank independence. Considering how difficult it would be for Europe’s heads of state and government to change the treaties, moreover, it is likely that the ECB has stronger protection in its independent status than any comparable institution set out in national legislation (Elgie 2002). Given this intentionally strong protection of the political independence of central banking, it is worth asking why anyone at the ECB would want to crossover into politics—particularly if the goal is to foster a political union that would be able to treat with the ECB on a more-than-equal status. The answer can be found in the cup of confetti that a young woman threw at Mario Draghi during one of his press 73

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conferences.4 The European Treaties may insulate the ECB from politicians, but they cannot insulate members of the ECB’s executive board or its governing council from ‘politics’ (Tucker 2018). This intrusion of politics into central banking reveals a tension in the construction of a European identity around monetary institutions. Identity formation is a political process that revolves around the promotion of shared values; again, in the European monetary context, the key value that is meant to be shared is the insulation of monetary authorities from politics. The problem is that politics means two different things. In a constitutive sense, politics is the answer to the question about who we are as a collective; in a distributive sense, politics is the answer to the question about who gets what as a result of shared institutions or policies. The ECB plays a positive role in European identity formation in the constitutive sense. The best we can hope for the ECB’s role in distributive terms is that it will be ambiguous. The tension arises when that distributive ambiguity disappears because winners and losers are likely to have different perspectives on relative merits of having a politically independent central bank.5 Economists recognized this tension all-along. Hence, the argument for central bank independence rests on four principles—time inconsistency, technocratic legitimacy, epistemic community, and distributive ambiguity—that should effectively mute the political salience of monetary policy making. These principles insulate central bank independence from politics by lengthening the time horizon for evaluating the effectiveness of monetary policy actions, by cloaking the machinery for monetary policy in technical language and complicated modeling, by avoiding divisive conflicts over policy decisions, and by relying on the fact that most people cannot connect the movement of monetary policy instruments to their personal financial situation or business prospects. To see how this works, it is worth illustrating these foundations from the ECB perspective. The time inconsistency argument is that politicians should forego short-term control over monetary policy in order to achieve the longer-term gains from the management of market expectations. That is why the ECB’s official definition of

4

See Heather Stewart, ‘”End ECB Dick-Tatorship”: Woman Disrupts Draghi Speech, Throws Paper at Officials,’ The Guardian (15 April 2015). 5 Here it is important to distinguish between levels of analysis and hence also between distributive ambiguity and macroeconomic neutrality in the conduct of monetary policy. In macroeconomic theory, the argument for central bank independence rests on the idea that monetary policy is neutral over the long run, because growth is a function of technological change and factor endowments. That macroeconomic neutrality tells us very little, however, about what happens to individuals, either in relative or in absolute terms. No change in policy instruments is neutral across individuals, because any change affects relative prices. Hence the question is whether individuals can identify the influence of that change on their relative position either at a given point in time or over time. Where individuals are systematically disadvantaged by the conduct of monetary policy, they have a right to complain—even if the long-run effects of the policy are neutral in terms of macroeconomic performance. Hence a second condition for political independence is that any distributive consequences are ambiguous and so essentially impossible for individuals to trace back either to individual policy decisions or to the monetary policy framework. If those implications are transparent and can be traced back to the policy framework, then there is a reason to assume that citizens will ‘politicize’ the delegation of responsibility for monetary policy to central bankers.

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price stability does not refer to the actual rate of inflation. Instead, it refers to the expected rate of inflation over the medium term. This creates four different sorts of ambiguity for people who might want to assess the ECB’s performance. The first is that it is unclear how inflation expectations are measured. There are some standard indicators, but they do not always point in the same direction. It is also unclear what the ECB means by ‘the medium term.’ The only thing we know for sure is that the medium term is not the present. Hence it is not only possible but also common for the ECB to say it is achieving its objective even when the actual rate of inflation differs from the numerical target for stability—an annual rate of change below but close to two percent. And, as ECB presidents often point out, the inflation that matters is for the euro area as a whole and not for any individual country (region, or city). By implication, the inflation that is important to the ECB is not the same as the price changes people experience in their daily lives. The implication of the time inconsistency argument is that monetary policy makers must be credible both to the voters and to market participants as technical managers of the monetary economy. The fact that most monetary policy makers use the same models, speak the same language, and have the same ‘reaction functions’ enhances that credibility and so improves the trade-off between shortterm cost and long-term gains (Verdun 1999). Hence it is unsurprising that ECB Executive Board Members are usually drawn from the national central banks and that the members of the governing council—meaning Executive Board Members and participating central bank governors or presidents—all form part of the global central banking community. The expansion of modern central banking to the formerly communist countries of central and Eastern Europe is a good illustration (Johnson 2016). It is also unsurprising that most central bankers emerge either from the world of finance or from the academic community. Both the experience—and the socialization to comes with it—is where they get their authority. Of course, people could still demand that central bankers be accountable to politicians (Elgie 2002). Hence it is important that the distributive consequences of typical monetary policy actions are difficult to anticipate ex ante and to attribute ex post. People do complain to central bankers about both inflation and unemployment. But these are complaints in principle—someone has to be held to account for the performance of macroeconomic aggregates, and the more the merrier from the perspective of an angry public—but not in practice. Few people actually know what macroeconomic aggregates are doing and even fewer can point unambiguously and confidently to a monetary policy action that they believe would have made a difference (Blendon et  al. 1997). Since most policy changes involve a 25-basis-point (or one-quarter of one percent) movement either up or down in the main policy rates, it is not surprising that people cannot draw an easy straight-line connection from a policy change to their own pocket books or employment prospects. The problem is not just that most people are creditors (think pension savings) and debtors (think mortgages) at the same time, but it is

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also that the policy change has to be transmitted from money markets to interbank markets and through the banking system to have an impact.6 The major hole in the system lies in economic geography and the uneven performance of the monetary transmission mechanism from one place to the next. The implications of changes in monetary policy rates are not everywhere the same and some regions within any monetary union are more immediately and profoundly influenced than others as a consequence. Soon after the Bank of England was made independent, for example, a reporter asked the bank’s governor, Eddie George, if his monetary policy caused unemployment in the North to calm inflation in the South; without hesitating, he answered that it did.7 Successive ECB presidents have often found themselves in a similar situation, making similarly awkward admissions. Most of these issues can be addressed by fiscal authorities at the national, regional, or local levels. Nevertheless, central bankers are not completely insulated from political interference. The point is that these are the conditions under which the political insulation for central bank independence is as good as it gets.8 Alas, these principles (again, time inconsistency, technocratic legitimacy, epistemic community, and distributive ambiguity) only hold when the economy is operating normally and when central bankers can focus on using small changes in policy rates to fine-tune macroeconomic performance. The principles start to break down when the economy behaves unpredictably—which is to say, outside the expectations built into the standard macroeconomic models. It is one thing for people to ignore monetary policymaking when central bankers look like they know what they are doing and quite another to ignore them when they look like they are fumbling around. This is not a normative concern; it is a matter of expectations in the marketplace. The danger is that expectations will become unmoored once market participants cease to have a clear view what to expect from monetary policy. Monetary policy looses effectiveness in such a context. Worse, the longer central bankers have to respond to unexpected and unpredictable economic performance, the more likely they are to run out of room for maneuver in the use of conventional instruments for monetary policy. Among central bankers, this problem is referred to as the ‘zero lower bound.’ As they approach that threshold, central bankers start to do things that they describe as ‘unconventional’ because they are less well understood. Again, the effectiveness of monetary policy diminishes as uncertainty increases about how much monetary policymakers can accomplish. This breakdown in the distributive ambiguity of monetary policy changes is important both in the narrow sense that it undermines the technical argument for central bank independence and in the broader sense that it undermines the political

6

See Mario Draghi’s speech to the annual meeting of central bankers at Sintra, Portugal, on 27 June 2017. 7 ‘Governor Tries to Douse North’s Fire,’ BBC News (22 October 1998). 8 The argument for central bank independence is orthogonal in many ways to the debate about optimum currency areas—if only because optimum currency areas do not exist in the real world and yet independent central banks do. That is why the argument for central bank independence has to be qualified for the implications of economic geography, not just for the ECB, but everywhere that regional disparities exist within a monetary union.

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independence of central banking as a shared value. The technical issues may be simply an engineering problem; the design of better institutions could make them go away. If the shared value of central bank independence breaks down—or worse, if the value of central bank independence becomes contested across countries—then the successful construction of a European identity comes into jeopardy. Unfortunately, the experience of the recent economic and financial crisis suggests that the problems the ECB is facing are more than just technical, they are identity related. To explain why, it is necessary to start with the technical considerations and then bring the identity politics back into play.

Unconventional monetary policy The use of unconventional monetary policy instruments challenges all four of the principles that insulate central bank independence from day-to-day politics. It operates on the wrong time horizon insofar as it offers short-term relief in exchange for longer-term costs. It is experimental in the sense that it has not been done before and so is not part of the standard models. It is controversial within the central banking community, where there are sharp disagreements about both short-term effectiveness and longer-term implications. Worst of all, unconventional monetary policy instruments are almost inherently political in that the winners and losers are obvious, at least in terms of first-order conditions. If the traditional argument for central bank independence tends to lower the political salience of monetary policymaking, the use of unconventional monetary policy instruments has the opposite effect. To see why this is so, it is worth exploring five sets of instruments: the rules that govern the collateral pledged by financial institutions that want access to central bank liquidity, direct intervention to stabilize securities markets, long-term refinancing operations, negative deposit rates, and large-scale asset purchases. These instruments are not part of the normal toolkit that central banks use to manage economic performance. When things start to go wrong, however, they quickly become important. The collateral rules normally function to prevent the central bank from taking unnecessary risk onto its balance sheet. Banks that want to borrow from the central bank should pledge only very high-quality assets as a guarantee of repayment. There are nevertheless situations where the central bank might want to relax these quality restrictions to prevent the banks from losing access to liquidity. One of these moments arose in September 2008 when Lehman Brothers collapsed and banks suddenly stopped lending to one-another; another such moment occurred in May 2010 when the Greek government asked for a bailout. In both cases, the ECB relaxed its rules to ensure that stricken banks maintained access to liquidity. In the short term, that policy response helped to stabilize financial markets and so also to protect the monetary transmission mechanism. Over the longer term, however, lax collateral rules brought increasing volumes of risky assets onto the ECB’s balance sheet. The fact of making exceptions to the rules also raised awkward questions about how long certain institutions or countries would get special 77

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treatment, whether and for whom the exceptions would be repeated, and who would have to bear the cost of covering any losses that arose from the policy. The decision of the ECB to intervene directly in key securities markets posed a similar array of problems. The initial justification for the policy as initiated in May 2010 was to ensure that markets remained liquid so that investors would not panic. Here again, the concern was that a market collapse would disrupt the monetary transmission mechanism since many of the assets the ECB supported were routinely held by financial institutions for use as collateral in routine treasury operations. Questions about who would bear the risk of ECB exposure and who would benefit from the conduct of the policy arose almost immediately and divided Europe’s top central bankers. Bundesbank president Axel Weber withdrew his candidacy to be ECB President in protest over the policy, and Jürgen Stark resigned his position as ECB Executive Board Member. The policy was also controversial because of the leverage it gave the ECB’s Governing Council over the policies of national governments. In August 2011, for example, JeanClaude Trichet co-signed letters with the central bank governors of Spain and Italy to the prime ministers of both countries. The letters made it clear that ECB support through the ‘securities markets program’ would only be forthcoming if the governments adopted a detailed reform agenda. When knowledge of these letters leaked to the press, the result was a political scandal. The introduction of long-term refinancing operations in December 2011 and February 2012 was also problematic. Initially, these operations offered unlimited access to 3-year loans at very low interest rates for banks that had sufficient collateral. The ostensible goal was to provide banks with funds to lend on to industry and so jump-start the economy. The actual effect was to tighten the connection between peripheral banks and their national governments—because the banks used existing holdings of domestic sovereign debt as collateral to borrow central bank money with which they could purchase more domestic sovereign debt to pledge against additional borrowing. In the short term, this helped to stabilize peripheral sovereign debt markets; in the longer term, it meant that the solvency of the domestic banks depended upon the solvency of their home governments. Once again, controversy erupted in the Governing Council over who should be responsible for absorbing the risks created by the policy. The story about negative deposit rates and large-scale asset purchases follows a similar pattern. The goal of the policy is to stimulate macroeconomic performance. The impact is to create inequitable and growing distortions. Negative deposit rates (and other forms of ultra-low interest rates) eat into the earnings of insurance companies and pension funds that need secure long-term assets in order to meet equally long-term liabilities. Large-scale asset purchases not only exacerbate this problem but also begin to create shortages for collateral used in treasury operations and to underpin interbank markets. Finally, large-scale asset purchases force central bankers to choose which assets to acquire and in what volume. They also have to decide, again, who will be responsible for absorbing any losses—particularly when the assets are purchased at a price above what the bonds would be worth at maturity. These decisions all have transparent distributive implications for the people who sell to the bank, for the people who hold onto their positions, Reprinted from the journal

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and for the tax payers who worry about recapitalizing their central banks once the purchases are unwound. Each of the main instruments for unconventional monetary policy causes problems. However, doing nothing is not an option. This is the point Mario Draghi made in two prominent speeches for different audiences. One speech was to the finance community and took place in London in July 2012;9 the other was to the central banking community and took place at the Jackson Hole conference in August 2014.10 In the first speech, Draghi admitted that the monetary transmission mechanism is broken; at the second he cautioned that the ECB risked losing control over expectations for price inflation. So long as the monetary transmission mechanism is broken, the ECB cannot steer the economy with conventional monetary policy instruments. That is why Draghi pledged to do whatever it takes to safeguard the euro. That pledge is essential to the ECB’s conduct of monetary policy. So is ECB influence over market expectations. Hence when Draghi pointed to the risk that inflation expectations would depart from the ECB’s definition of price stability, what he was really establishing was that the ECB was running out of time to act. Using unconventional monetary policy instruments was the least dangerous option. It exposed the ECB to political scrutiny but that loss of insulation was a price worth paying if that would return economic performance to normal. Already by the summer of 2012, it was fair to question whether the single currency was a symbol of shared values or an impending source of political conflict. Soon after Draghi made his commitment to do ‘whatever it takes,’ he was forced to admit that there was an open division on the Governing Council with the President of the German Bundesbank. This was the first time in the history of the institution that any President of the ECB had called out the opposition to his policy by name. Moreover, the fact that the policy appeared to restore confidence in the markets did little to calm the turmoil. On the contrary, the political divisions lingered and the task facing the ECB had already become more complicated.

Financial market supervision Unfortunately for central bankers, unconventional monetary policies cannot repair a broken monetary transmission mechanism. Such policies can create liquidity, and they can influence the price of credit, but they cannot force financial institutions in any one part of the monetary union to do business with financial institutions elsewhere. By implication, unconventional monetary policies cannot ensure that financial conditions are everywhere the same or even somehow interconnected. This explains why central bankers pay such close attention to financial stability both in terms of individual institutions (micro-prudential supervision) and in terms of the wider marketplace (macro-prudential supervision). When it was founded in 1998,

9

See Mario Draghi’s speech to the Global Investment Conference in London on 26 July 2012. See Mario Draghi’s speech to the annual central banking symposium at Jackson Hole on 22 August 2014. 10

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the European Central Bank sought to avoid this responsibility, leaving responsibility for prudential supervision to the relevant national authorities. During the crisis, the ECB changed take and began asserting its supervisory authority. In terms of political insulation, however, this only made matters worse. The ECB’s evolution as a financial supervisor can be mapped through five national cases—Ireland, Spain, Cyprus, Greece, and Italy. At each stage, European central bankers faced judgement calls that created winners and losers both within and across countries. With each decision, those who lost out from the policy had an easy time tracing responsibility back to decisions taken inside the ECB. Worse, as European central bankers adapted their views to the changing circumstances of the crisis, they created an appearance of inconsistency that could be characterized as either arbitrary or biased. Hence, while it is possible to argue with the benefit of hindsight that central bankers managed to save the European financial system, it is easy to see how the ECB built up a record of political resentment along the way. Again, it is worth underscoring that such resentment is not a technical problem or simply a matter of distributive politics (that could be relieved through offsetting transfers); rather it is a problem of constitutive politics. Europeans find it hard to share the value of central bank independence when the central bank in question seems to behave in an arbitrary or biased manner. It is easier in that context for Europeans to regard themselves as Irish, Italians or Germans, and to view the ECB as a foreign entity rather than as a source of common identity. The Irish case came at the start of the crisis as central bankers sought to prevent the shockwaves that originated in the collapse of American subprime mortgage markets from propagating across the European marketplace. The Irish banks were at the leading edge (Lynch 2010; Sharma 2011). They were exposed to losses from investments in the USA but also reliant on investments from other European banks—in the form of money market loans, deposits, and bond holdings—as their source of funding. This kind of balance sheet exposure was not unique to Ireland, but the vulnerability of the Irish banks to losses both of assets and of funding sources was extreme. Moreover, the European Central Bank worried that treatment of the Irish banks would set a pattern that investors would expect to be followed in other markets. Hence the ECB made two determinations: • First, bond holders and large depositors could not be made to share in the burden

of covering the losses made by the Irish banks. The Irish government (and hence the Irish taxpayers) would have to cover those losses themselves so that the bond holders could be made ‘whole.’ This lack of burden sharing was to prevent the threat of contagion that would arise if investors refused to purchase bank bonds elsewhere in Europe, which would deprive other European banks of a critical source of funds and so probably lead to their collapse. • Second, the Irish government could not try to ignore the country’s banking crisis by having the Central Bank of Ireland keep institutions afloat through the provision of unlimited emergency liquidity assistance. By restricting the supply of emergency liquidity assistance, the ECB not only sought to force the Irish government to confront its banking problem, but also to prevent the creation of excess liquidity that might be a problem for price stability at some point in the Reprinted from the journal

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future. The ECB also sought to ensure that the Central Bank of Ireland did not take on too much risk in the form of distressed assets used as collateral. These two decisions together are what forced the Irish government to wrestle with its banking problem in the period from 2008 to 2010. Toward the end of that period, the Irish government had to request a humiliating bailout from its European partners. The ECB did not create the Irish banking crisis, and it could not have prevented that crisis from resulting in widespread losses. But it did influence when those losses were experienced and how the burdens were distributed. The result is a lasting legacy of resentment in Ireland for what many perceive to be interference by central bankers in what they believe should have been a more open and transparent political process. Moreover, Ireland’s treatment did not prevent the crisis from spreading. That is why the next illustration focuses on the Spanish banks (Royo 2013a, b). The larger, more international Spanish banks were not badly hit by the crisis. The smaller, more parochial banks were nevertheless severely damaged. The Spanish government responded by pushing these smaller banks into a succession of successful mergers. The result was to create a giant Spanish banking institution—called Bankia—that was essentially insolvent. Worse, the Spanish government could not afford to bailout this institution without threatening its own creditworthiness in the bond markets. What the Spanish government needed was some kind of direct recapitalization using European resources. The ECB’s involvement in this context unfolded in two stages. To begin with, the ECB agreed to embrace its role as single supervisor for the European financial system in exchange for a commitment that European resources for the direct recapitalization of failing financial institutions would follow. In this way, the ECB sought to shore up confidence in European financial institutions while at the same time severing the link between financial stability and sovereign finances. That commitment proved insufficient to hold off pressure in the bond markets. As a result, ECB President Mario Draghi took the unprecedented step of committing to do ‘whatever it takes’ to stabilize sovereign debt markets for those countries that request assistance and are willing to accept European supervision. He made this commitment at the speech in London cited earlier. Together the decision to act as single supervisor and the determination to do whatever it takes to stabilize sovereign debt markets succeeded in restoring market confidence. Nevertheless, the twin comments made by the ECB during the time of the Spanish banking crisis also created the impression among the Germans and other northern Europeans that governments in distress would not be held accountable for their actions; the German Bundesbank even went so far as to file an amicus brief to support complaints made to the country’s constitutional court that the European Central Bank had exceeded its mandate. Meanwhile, many southern Europeans noted that the direct recapitalization of banks was not forthcoming—and neither were other forms of burden sharing typically associated with ‘banking unions’ like the one implied by the creation of a single supervisory mechanism. By implication, they got European supervision without European solidarity. Once again, this gave rise to lasting resentments implicating the European Central Bank. 81

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The Cypriot crisis followed soon after the turmoil around the Spanish banking system subsided (Demetriades 2017). At the time, Cyprus had  a small number of very large banks relative to the rest of the Cypriot economy. Unlike in the Irish case, however, these banks were not exposed to US asset markets and neither did they rely excessively on other banks for funding. Instead, the Cypriot banks invested in European assets and they relied almost exclusively on deposits. This made  them very conservative in structure compared to their more adventurous Irish counterparts. Unfortunately, many of the assets were Greek government bonds that were wiped out during the March 2012 restructuring and many of the deposits came from Russian oligarchs and other morally dubious international investors. The Cypriot government could not afford to recapitalize the banks with its own resources, and it did not want to impose losses on bank depositors who might take their business elsewhere. Hence, it tried to ignore the crisis in its financial institutions by relying on the Central Bank of Cyprus to keep the institutions afloat with emergency liquidity assistance. The position of the European Central Bank on Cyprus was similar to its position on Ireland but also different. The ECB did not want the Cypriot banks to linger on emergency liquidity assistance. Although the additional liquidity created by the Central Bank of Cyprus could not undermine price stability for the euro area as a whole, the precedent it set was dangerous: The large Cypriot banks were essentially insolvent and national central banks should not be propping up insolvent institutions. In contrast to the Irish situation, however, the ECB was unafraid of encouraging burden sharing. The risk that whatever happened in Cyprus would threaten the funding models for other European financial institutions was low, particularly given the unique (and uniquely unsavory) source of much of the Cypriot banks’ deposits. The Cypriot government complained that any burden sharing would crush their financial services industry, particularly if it relied solely on contributions from large depositors. Hence the government suggested a formula for distributing losses that would implicate small depositors that would otherwise be covered by deposit insurance. Surprisingly, the ECB agreed. The resolution of the Cypriot banking crisis almost failed spectacularly. The Cypriot parliament rejected the burden sharing formula suggested by the ECB and complained bitterly about the decision to cut off emergency liquidity assistance. In the meantime, the government could only shore up the banks by imposing capital controls to prevent the flight of deposits. Quickly, however, the Cypriot government regained control and worked out a new formula for burden sharing that the parliament would accept. Once again, the European Central Bank looked the villain—for precipitating the crisis and for interfering where its advice was not needed. More important, perhaps, some of the northern European leaders used the case of Cyprus to push back against the decisions made by the ECB in the context of Spain. For example, the Dutch Finance Minister and Euro Group President Jeroen Dijsselbloem argued that Cyprus should be the model for future banking resolution through burden sharing; the goal, he insisted, is to avoid any direct recapitalization of banks using European resources. Dijsselbloem later retracted that statement, at least partially, and yet the impression that the peripheral countries of Europe would get supervision without solidarity was reinforced along the way. Again, the ECB was Reprinted from the journal

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implicated—by Dijsselbloem and others for pushing back against burden sharing and by the peripheral countries for not doing enough to promote risk-sharing in the interests of financial stability. The Greek case followed two years later after the election of a Syriza-led government on an anti-austerity platform (Varoufakis 2017). This case again focuses on the use of emergency liquidity assistance, this time by the Central Bank of Greece. However, the problems did not originate in the banking system. Instead, they arose from a decision taken by the European Central Bank with regard to Greek sovereign debt instruments. Typically, banks use sovereign debt as collateral to borrow money from central banks. Greek banks are no different. The challenge for the Greek banks was that the collateral they held consisted primarily of Greek sovereign debt. This issue arose already during the March 2012 Greek sovereign debt restructuring, when the European Central Bank had to provide new collateral to the Greek banks to replace the Greek government bonds that were declared insolvent (which is what precipitated the banking crisis in Cyprus—because the Cypriot holdings of Greek sovereign debt were not replaced). After the restructuring, the Greek banks could use new Greek sovereign debt instruments to meet their collateral requirements. Moreover, the European Central Bank provided a special waiver to overcome the minimum credit requirements. So long as the Greek government remained under supervision within a fiscal consolidation program, Greek banks could use Greek government bonds to borrow money from the Central Bank of Greece in a normal fashion. With the formation of a Syriza-led government, however, the European Central Bank lost confidence that Greece would remain under supervision as part of a fiscal consolidation program. Therefore, in early February 2015, the ECB withdrew the waiver that made Greek government bonds eligible for use as collateral in routine liquidity operations with the Central Bank of Greece. By implication, the Greek banks had to use the same Greek government bonds to obtain more expensive emergency liquidity assistance. This not only cut deeply into the profitability of the banks but also sent a powerful signal into the marketplace that the Greek banks were not safe. Given what happened in Cyprus, it is unsurprising that deposits quickly left the Greek banking system and the Greek banks found themselves strapped of funding. The question became one of not whether the European Central Bank would cut off emergency liquidity assistance to the Greek financial system, but when. The answer was revealed in the dramatic confrontation between the Syriza-led government and the rest of the Euro area. As with Cyrpus, the crisis was resolved and yet did lasting damage to the reputation of the ECB which has been characterized by many of those who lost out in the exchange—like the outgoing Greek finance minister, Yannis Varoufakis—as both arbitrary and biased for the role that it played. The final illustration focuses on Italy and the series of banking resolution episodes it undertook between December 2015 and June 2017. By this time, the European Union had a new banking resolution framework—called the banking recovery and resolution directive (BRRD)—that eliminated and re-structured much of the discretion available to the ECB. For example, the BRRD provides a clear framework for burden sharing among the creditors of a stricken bank; it outlines well-defined steps for determining whether a bank can be recapitalized in a precautionary manner, 83

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whether it has to go through a structure resolution within the European framework, and whether it can be liquidated under national legislation. The ECB plays a role in influencing which of these options is available in its role as single supervisor—primarily by identifying shortfalls in regulatory capital, checking whether a bank has a realistic plan to return to profitability, and assessing whether the institution is systemically important for the euro area as a whole. Alas, even this limited discretion was enough to get the ECB into political controversy. The ECB was criticized for the slowness with which it recognized the fragility of the Italian financial institutions; for its willingness to support a precautionary recapitalization of Monte die Paschi di Siena; and for its determination that Banca Veneto and Banca Popolare di Vicenza were eligible for liquidation under Italian legislation. The ECB could share this criticism with other institutions. The European Commission’s competition authorities also played a role, as did the Eurogroup of economics and finance ministers. Such institutional companionship did not insulate the ECB from criticism for the decisions it made. Popular support for European integration also faltered. Where once Italians had been among the most enthusiastic supporters of the European project, that support has diminished significantly.11 Italians’ sense of isolation in facing migration across the Mediterranean was a major source of disillusionment; frustration European interference in the banking sector came a close second; more generalized frustration with the euro was not far behind. The obvious distributive implications of the ECB’s actions were not just a political problem in the technical sense, but they were also fracturing Italians’ sense of European identity.

Responsibility and accountability The European Central Bank may be politically independent in a constitutive sense and yet it is also inherently political in a distributive sense. That distributive character is not evident in normal times; it is hard if not impossible to avoid in times of crisis. Europe’s central bankers cannot retreat from the use of unconventional monetary policy instruments when they are operating close to the zero lower bound or when the monetary policy transmission mechanism is broken. And they cannot return the economy to normal monetary conditions without first restoring confidence in the financial system. In turn, this requires central bankers to play an active role in underpinning financial stability—both with respect to asset markets and in terms of overseeing European banks. These inherently political responsibilities chip away at the legitimacy of central bank independence and so force central bankers to make a choice. One option is to get national politicians to accept responsibility for the constraints on central banking (Tucker 2018). If politicians would do more of the heavy lifting in terms of stimulating macroeconomic performance (either through structural reforms or through fiscal policy), then central bankers could go back to fine-tuning. And if politicians would

11

These statistics can be found across standard editions of the Eurobarometer surveys.

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act decisively to make the difficult financial policy decisions, primarily by cleaning up their banking systems in a timely manner rather than drawing out resolution and recovery processes until they become too expensive to manage, then central bankers could focus more narrowly on enforcing their mandate. The European Central Bank has made a mantra of these requirements. The two final paragraphs of the opening statement at every ECB press conference are devoted to ways that the member state governments can lift the constraints on monetary policymakers by shouldering more of the burden in improving macroeconomic performance. The ECB has also worked more directly. Here too the letters sent by Jean-Claude Trichet and the national bank presidents of Spain and Italy to the governments of those countries in August 2011 are illustrative. Almost nowhere, however, has this kind of central bank intervention been a success. The Italian government tried and failed to live up to the conditions that the ECB set for assistance; successive Spanish governments succeeded for a short time only to fall prey to the growing weakness of the banking system and to the perverse symbiosis between financial fragility and sovereign creditworthiness (Royo 2013a). In turn, Spain’s near collapse prompted Draghi to revise Trichet’s offer with the promise to do ‘whatever it takes.’ That promise included conditionality that many assumed the Spanish government would have to accept; Spanish prime minister Mariano Rajoy narrowly avoided that fate. The reason governments cannot do more of the heavy lifting on the fiscal side is more structural than attitudinal. The problem is not that national politicians fail to see the logic of what the ECB is asking; rather it is that they face two different dilemmas. The first is a collective action problem. The governments that have the capacity to stimulate macroeconomic performance do not need it and the governments that need macroeconomic stimulus do not have the capacity to create it. These two groups are more likely to polarize any conversation about macroeconomic governance than to work together to achieve some kind of synthesis. The second dilemma is a kind of ecological fallacy. The rules that are good for financial stability across an integrated European marketplace are not good for stability at the national level. The Fortis case is revealing here. Although joint resolution of multinational banks is important as an aspiration, national governments are all too quick to ring-fence their citizens in the event of a major failure (Kudrna 2012). Similarly, the rules that are good for stability at the national level are not good for European financial market integration (or the smooth functioning of the monetary transmission mechanism). Hence, ECB Executive Board Members have spoken out repeatedly against the insistence of national bank regulators on having the banks under their supervision match assets and liabilities locally.12 Nevertheless, so long as politicians are politically accountable at the national level, they are not going to accept responsibility for restoring normal monetary conditions at the European level. Trying to create a shared macroeconomic policy framework or a common culture of financial stability is unlikely to resolve either of these dilemmas. Even

12

See, for example, Peter Praet’s speech to the SUERF conference in New York on 20 September 2018.

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policymakers who accept the same general macroeconomic commitments are going to express different preferences at different points in the business cycle. Therefore, unless it is possible to underpin common macroeconomic guidelines with common performance, any consensus is likely to shatter at the first sign of significant divergence from one member state to the next. That is the lesson from the early 2000s; it is a lesson being reiterated now by the Italian government. A common financial stability culture is also likely to prove fragile. The reason can be found in Hyman Minsky’s financial instability hypothesis among financial market participants and among regulators in the recurrent belief that ‘this time is different.’ Hence the second option available to European central bankers is to push for the creation of a European political authority that operates at the same level of aggregation as the monetary union. In turn, that authority can assume responsibility for the decision to conduct unconventional monetary policies or for the elaboration of alternative fiscal arrangements. That authority can assume responsibility for the unpleasant side of financial market supervision as well. Moreover, while that authority is held to account for its actions, the ECB can preserve its political independence. Where once the ECB symbolized the values that Europeans shared in terms of their commitment to central bank independence and, more broadly, to the European project, now the ECB relies on external sources of European identity to shore up commitment to its unique institutional arrangement. Indeed, populist political movements like the Alternative for Germany, the Italian Northern League (now called Lega), and the French National Front  (now called Rassemblement National) use their opposition to the ECB and to the euro as a common currency as a means of burnishing their nationalist appeal. The ECB remains a source of identification, but its role has become negative rather than positive from a European perspective.

A strategically constructivist solution The only way to restore the ECB’s positive role in terms of European identity formation (and hence constitutive politics) is to lower the prominence of the ECB as a focal point for crisis management and macroeconomic policymaking (and hence distributive politics). What the European central bankers have learned during the recent crisis, alas, is that shifting responsibility back onto national politicians is not possible and yet making politicians accountable at the European level is also not an easy task. Europeanizing macroeconomic policymaking requires institutions for deliberation, rule-making, justification, implementation, and revision. In other words, central banks can only find adequate insulation once they are embedded in a comprehensive political system (McNamara 2015; Matthijs and Blyth 2015). By implication, the ECB feels the need for some kind of political union now more than ever. Where once it might have been enough for ECB presidents to make a point of testifying before the European Parliament, now they feel greater need to seek a more comprehensive form of engagement. This requirement for political union puts European central bankers in a strange position. In order to preserve their political independence, they have to convince everyone else to make radical changes in the way they do politics. The ECB has Reprinted from the journal

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made a series of tentative forays into this domain by signing onto the various ‘Presidents Reports’ for the completion of Europe’s economic and monetary union. These reports outline steps to improve both the architecture for policymaking and financial markets and the patterns for democratic representation and accountability. Implicitly, the ECB (together with the other institutional ‘presidents’) is replacing a constitutive politics of identity formation around common values with a more formal constitutional politics through institution building. This shift to institution building does not mean central bankers have stopped worrying about identity politics. On the contrary, it means they are relying on institutional projects to foster and strengthen a European identity—as the strategic constructivists would suggest. Moreover, they are doing this with an explicit strategic objective. Central bankers are dreaming of political union so that they can go back to being central bankers and so get out of the business of politics.

References Blendon, R.J., J.M. Benson, M. Brodie, R. Morin, D.E. Altman, D. Glitterman, M. Brossard, and M. James. 1997. Bridging the Gap Between the Public’s and Economists’ Views of the Economy. Journal of Economic Perspectives 11(3): 105–118. Brunnermeier, M.K., H. James, and J.P. Landau. 2016. The Euro and the Battle of Ideas. Princeton: Princeton University Press. Demetriades, P. 2017. A Diary of the Euro Crisis in Cyprus: Lessons for Bank Recovery and Resolution. London: Palgrave Macmillan. Elgie, R. 2002. The Politics of the European Central Bank: Principal-Agent Theory and the Democratic Deficit. Journal of European Public Policy 9(2): 186–200. Feldstein, M. 1997. EMU and International Conflict. Foreign Affairs 76(6): 60–73. Hall, P.A. (ed.). 1989. The Political Power of Economic Ideas: Keynesianism across Nations. Princeton: Princeton University Press. Helleiner, E. 2002. The Making of National Money: Territorial Currencies in Historical Perspective. Ithaca: Cornell University Press. Jabko, N. 2015. The Elusive Economic Government and Forgotten Fiscal Union. In The Future of the Euro, ed. M. Matthijs and M. Blyth, 70–89. Oxford: Oxford University Press. Jacobs, L.R., and D. King. 2016. Fed Power: How Finance Wins. New York: Oxford University Press. Johnson, J. 2016. Priests of Prosperity: How Central Bankers Transformed the Postcommunist World. Ithaca: Cornell University Press. Kudrna, Z. 2012. Cross-border Resolution of Failed Banks in the European Union: Business as Usual. Journal of Common Market Studies 50(2): 283–299. Lynch, D.J. 2010. When the Luck of the Irish Ran Out. New York: Palgrave Macmillan. Matthijs, M., and M. Blyth. 2015. Introduction: The Future of the Euro and the Politics of Embedded Currency Areas. In The Future of the Euro, ed. M. Matthijs and M. Blyth, 1–20. Oxford: Oxford University Press. McNamara, K.R. 1998. The Currency of Ideas: Monetary Politics in the European Union. Ithaca: Cornell University Press. McNamara, K.R. 2002. Rational Fictions: Central Bank Independence and the Social Logic of Delegation. West European Politics 25(1): 47–76. McNamara, K.R. 2015. The Forgotten Problem of Embeddedness: History Lessons for the Euro. In The Future of the Euro, ed. M. Matthijs and M. Blyth, 21–43. Oxford: Oxford University Press. Otero Iglesias, M. 2017. Why the Eurozone Still Backs Its Common Currency: The Euro as Social Bond. Foreign Affairs. https://www.foreignaffairs.com/articles/europe/2017-01-12/why-eurozone-still -backs-its-common-currency. Accessed 17 July 2018. Royo, S. 2013a. Lessons from the Economic Crisis in Spain. Basingstoke: Palgrave.

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E. Jones Royo, S. 2013b. A ‘Ship in Trouble’: The Spanish Banking System and the International Financial Crisis. In Market-Based Banking and the International Financial Crisis, ed. I. Hardie and D. Howarth, 151–178. Oxford: Oxford University Press. Saurugger, S. 2013. Constructivism and Public Policy Approaches in the EU: From Ideas to Power Games. Journal of European Public Policy 20(6): 888–906. Sharma, S.D. 2011. Why Ireland’s Luck Ran Out and What This Means for the Eurozone. The International Spectator 46(1): 115–126. Tucker, P. 2018. Unelected Power: The Quest for Legitimacy in Central Banking and the Regulatory State. Princeton: Princeton University Press. Vail, M.I. 2010. Recasting Welfare Capitalism: Economic Adjustment in Contemporary France and Germany. Philadelphia: Temple University Press. Varoufakis, Y. 2017. Adults in the Room: My Battle with Europe’s Deep Establishment. London: The Bodley Head. Verdun, A. 1999. The Role of the Delors Committee in the Creation of EMU: An Epistemic Community? Journal of European Public Policy 6(2): 308–328.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Erik Jones is Professor of European Studies and International Political Economy and Director of European and Eurasian Studies at the Johns Hopkins School of Advanced International Studies and Senior Associate at the Istituto degli studi di politica internazionale (ISPI) (Italy).

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Comparative European Politics (2019) 17:548–566 https://doi.org/10.1057/s41295-019-00178-1 ORIGINAL ARTICLE

The EU’s legal identities and the Court of Justice of the EU Sabine Saurugger1 · Fabien Terpan2 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract This paper aims to analyse whether ‘economic integration through law’ still is one of the EU’s central identities. From the 1960s to the Maastricht Treaty of 1992, the Court of Justice of the European Union (CJEU) was considered to be one of the main actors creating rulings that allowed establishing a regulated single market. Since the 1990s, however, the Court’s contribution to this legal identity has been questioned, based on structural and policy-related factors. Structural factors refer to the Court’s perceived caution in its rulings; policy-related elements point to the idea that the Court’s rulings are considered to contribute not only to a pro-market identity of the EU, but to increasingly create a multifaceted identity, including the protection of human and social rights. The aim of this article is to analyse this alleged transformation through a study of the most salient decisions of the CJEU before and after the Maastricht Treaty in specific policy areas: the common market, social, health and human rights, EMU and economic governance. This selection of policy areas allows us to analyse whether the Court has indeed created an understanding of integration through law exclusively based on economic rights or whether the content of integration through law is also based on a more general understanding of the constitutionalisation of European integration beyond the establishment of a common market. Keywords Court of Justice of the European Union · Identity · Case law · European integration

* Sabine Saurugger [email protected] 1

Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, Grenoble 38000, France

2

Univ. Grenoble Alpes, Sciences Po Grenoble, CESICE, Jean Monnet Chair, Grenoble 38000, France

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Introduction Is the Court of Justice of the European Union (CJEU) still fostering ‘integration through law’, and more precisely a market-oriented version of European integration? Is it, on the contrary, less actively pushing for supranational integration, and more and more inclined to go beyond market orientation in its rulings since the early 1990s? These are crucial questions when analysing the EU’s identity and the contribution of the Court to this identity. In accordance with this special issue’s introduction, we understand identity in this context as a collective matter, being the selfunderstanding of a group of political actors (Abdelal et  al. 2006) as expressed in the institution’s norms, values and aims. This political identity is not static, but is transformed and contested over time. In other words, political identity in this article refers to the process of constructing and stabilising political entities as social facts, giving them a taken-for-granted status in political life. We distinguish between identities across areas (horizontal) and within areas (content). In this article, the CJEU’s identities across areas refer to the broad understanding of ‘integration through law’; identities within areas refer to specific aims of integration through law—a market identity, a social or a human rights identity that we can find in the rulings. Today, the EU is considered as one of the most highly institutionalised supranational political systems in the world, a system created, in particular, through the decisions taken by the CJEU (Stone Sweet and Caporaso 1998; Alter 2001, 2009; Kelemen 2011). As Kathleen McNamara pointed out, the CJEU has created a ‘banal authority’ in the EU’s political system (McNamara 2015: 3) and has highly contributed to the creation of the EU’s legal identity. The latter has long been perceived as a process of economic integration through law, defined as a pro-integration orientation and a market orientation of the Court’s case law. This would confirm the assumption presented by Saurugger and Thatcher (2019) in this special issue’s introduction, according to which EU organisations have a greater capacity to construct an identity in domains that are more supranational. However, since the 1990s, structural elements—more specifically the end of the permissive consensus, defined as the end of the rather loose and passive support of European citizens for the continued widening and deepening of the European integration process—have put pressure on supranational institutions, and in particular, the CJEU. As underlined in the introduction of this special issue, a higher degree of public scrutiny in recent years appears to have led the Court to exert a certain degree of caution in its rulings and hence a lesser role in elaborating the specific horizontal European identity of ‘integration through law’. Intergovernmental decision-making procedures seem to have diminished the Court’s influence even further (Fabbrini 2014,  2019; Granger 2015). This goes hand in hand with a debate on policy or content-related factors influencing the Court’s legal identities. While a first group of scholars has developed an understanding of ‘integration through law’ as exclusively based on economic rights (Jacquot 2015; Scharpf 2008, 2013, 2016; Kaupa 2013; Garben 2017; Reprinted from the journal

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Schmidt 2018; Schenk and Schmidt 2018), another group has equally argued that the CJEU has broadened its spectrum, going beyond the defence of the common market and including social, civic and human rights (Cichowski 2004, 2007; De Búrca 2013; Kokott and Sobotta 2012). This illustrates the complexity of the debate about identity construction (see also Duina and Smith 2019). These controversies point to the possibility of a coexistence (or parallel production) of different legal values (Saurugger and Terpan 2018), due to the enlargement of the EU’s scope of action, with logical implications for the resulting political identities. The existence of these different values, and hence the different legal identities the CJEU has contributed to construct, are based on a series of factors, in particular the context in which the Court acts, which is as legal as it is political (Blauberger et al. 2018; Kelemen 2016; Larsson et al. 2017; Pollack 2016), and the way the Court’s rulings are interpreted. This leads us to the methodological problem most studies of the CJEU are facing. Indeed, methodologically speaking, analysing the construction of the legal identity through the Court is more challenging then analysing those of other institutions with maybe the exception of the European Central Bank (see Jones 2019). This is linked to the fact that the CJEU’s rulings are far less self-evident than the decisions of other European institutions: they are subject to high controversy in the legal doctrine and cannot be clarified by judges at the CJEU due to an obligation of secrecy. This methodological difficulty leads us to make a number of bold methodological decisions: as we cannot take the totality of CJEU rulings into account, even when focusing on the selected policy sectors, we rely on secondary literature for our case selection. The article selects the major rulings in specific policy areas under scrutiny, based mainly on major handbooks, in particular Craig and de Burca’s (2015) EU law handbook, and on two main journals, a legal one—the European Law Journal—and a political science one—the Journal of European Public Policy. While this method might induce a bias, as we depend on previous choices made by scholars, it is in line with the central aim of this special issue as developed in its introduction: to study the identity construction through the analysis of actions, discourse and paradigms of European institutions. The article is structured as follows: a second section presents the EU’s horizontal identity based on ‘integration through law’. The analysis of scholarly literature shows that, despite structural challenges, ‘integration through law’, while disputed, has not entirely lost momentum in recent years. A third section turns to an analysis of the interpretation of Court rulings in specific policy fields. Contrary to the idea of the Court being exclusively market-oriented, policy-related factors—the enlargement of the EU’s scope of action—seem to have contributed to an EU vertical identity going beyond the internal market.

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Legal identity across areas: does the Court still trigger ‘integration through law’? What do we understand by ‘integration through law’? The Court of Justice is considered to have made a significant contribution to the identity of the European Union through its interpretations of European law. Research on the CJEU generally underlines the Court’s high degree of influence from the 1950s until the 1980s in creating ‘integration through law’. While the Treaty of Rome conceived of the Court’s role as one of interpreting and assessing the validity of European law, the Court later went beyond these legal bases. When confronted with decision-making blockades at the Council, in the aftermath of the Empty Chair crisis (1965–66), the Court compensated for the lack of EU legislation through judicial policy-making. This understanding of the Court, which was first based on analyses by Stein (1981), Weiler (1981) and Cappelletti et al. (1986), has been widely shared and further built upon by a number of scholars who develop a common perception of the Court as a creator of identity and European’s ‘judge-made law’ (among many Slaughter et  al. 1998; Stone Sweet and Caporaso 1998; Stone Sweet 2000; Stone Sweet and Brunell 2004; Alter 1996, 1998, 2007; Alter and Meunier-Aitshalia 1994; Armstrong 1998; Werner 2016; Vauchez 2008). From this perspective, the perceived and sometimes automatically assumed ‘neutrality’ of the judiciary was for some time the cornerstone of the CJEU’s claim to be the sole interpreter of the rule of law. Its inherent legitimacy was not contested by most scholars working on and developing the reading of the Court’s contribution to a European identity as ‘integration through law’. From the mid1980s onwards, however, this understanding of the Court’s contribution started to be questioned, most prominently by Rasmussen’s study of the Court (Rasmussen 1986), where it was argued that the Court’s authority and legitimacy was in fact undermined by excessive activism, a perception that was later taken up (Beck 2012; Conway 2014) and discussed (Arnull 2013; Grimmel 2012, 2014a, b) by a series of legal scholars. The Court’s cognitive frame, contributing to the creation of a European identity, might therefore also be understood as the doctrine constructed by the European judges through legal interpretations, and constraining all EU actors, including the Court itself (Cohen and Vauchez 2007). Judges, while deciding on a case, make strategic decisions with regard to the Court’s external political, social and economic environment (Blauberger et al. 2018). Hence by linking both aspects— the legal cognitive frame and the strategic position with regard to other actors— is it possible to understand the Court’s place in the establishment of the EU’s identity of ‘integration through law’. Pointing at the Court’s propensity to widely interpret EU norms and ‘make’ law hence allows us to see the Court as a political actor and a central element in the building of a EU identity. The EU as ‘integration through law’, while based on the Court’s actions, is, however, not only dependent upon the interpretation we find in the literature but Reprinted from the journal

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also upon the use that is made of these rulings at the domestic level. Hence, the construction of a EU’s identity as based on integration through law is not solely an act of the Court, commented and transformed into legal doctrines, but must be taken up and ‘lived and applied’ at the domestic level. Governments and domestic courts need to accept the Court’s rulings in order to make ‘integration through law’ a taken-for-granted status in political life. While some domestic courts have been, and still are, sometimes severe critics of a series of CJEU’s rulings (Davies 2012; Wind 2010; Bobek 2008), and national governments have aimed at overruling the Court’s decisions in several cases (Martinsen 2015a), this resistance is not generally not interpreted as an overall rejection of the CJEU as such. Interest groups, companies and NGOs have been equally crucial actors in the ways in which they have used the Court for their own purposes, and thus contributed to the formation of the CJEU as a central actor in the EU’s ‘integration through law’ identity. Studying non-state actors’ activities explained why certain CJEU rulings have been complied with and others rejected—notwithstanding the lack of coercive means at EU level (Conant 2002; Cichowski 2007; Vanhala 2010). Conant (2001) and Cichowski (2007) more precisely show that national institutional variations and their consequences for state–society relations create variable pressures for national judges to participate in the European legal system. They convincingly argue that the transnational activity of multiple EU actors, based on interest group action, contributes to explain the creation of the understanding of European integration as ‘integration through law’.

The EU’s ‘integration through law’ identity: challenged but resilient During the 1990s, arguments have emerged in the literature according to which ‘integration through law’ and the CJEU are less central to the integration process than they used to be from the 1960s to the 1990s. This is based on two factors: first, confronted with resistance at national level, the rise of euroscepticism and the end of the permissive consensus, the CJEU would now exert increasing self-restraint when confronted with opposition from either the largest member state positions (Carruba et al. 2008, 2012; Larsson and Naurin 2016; Larsson et al. 2017) or the public opinion more generally (Blauberger et al. 2018). Second, national governments have chosen to develop new modes of governance, mostly based on soft law, which escape the judicial control of the Court of Justice. The development of new ways of functioning such as the Open Method of Coordination and other alternatives to the Community method would have reduced the role of Court-led legal integration in the building of the EU’s identity. Parallel to these views challenging the central role of the Court, however, we find in the literature a different interpretation of legal integration, stressing the continued contribution of the CJEU to integration through law. With regard to these two readings of the Court’s contribution to European integration, several scholars interpret the developments differently. Bold rulings seem not to have disappeared. An example is the concern voiced by scholars and the media alike over the Kadi ruling (C-402/05) in 2008 where the Court overruled the judgements of the Court of First Instance (now the General Court) and 93

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annulled Council Regulation 881/200, which had imposed restrictive measures against persons and entities associated with Osama bin Laden, the Al-Qaeda network and the Taliban. Instead of accepting the primacy of international law (UN Security Council sanctions), the CJEU has chosen to control it on the basis of EU fundamental rights, which has been considered audacious by a number of scholars (Van den Herik and Schrijver 2008; De Búrca 2010; Saltinyte 2010; Santos Vara 2011; Eckes 2012). Other rulings and opinions, such as the case of Mangold on age discrimination, or the opinion 2/13 on the accession of the European Union to the European Convention of Human Rights, have been equally described as being audacious, or even activist (Schiek 2006; Semmelmann 2013; Storgaard 2015; Isiksel 2016). Although it is difficult to measure precisely the proportion of audacious rulings in both periods—before and after the Maastricht treaty—and thus to determine whether there has been a decrease in activism since the early 1990s, the secondary literature stresses the existence of a number of audacious rulings in the recent period, seemingly sufficient to conclude that the Court is far from systematically apply self-restraint instead of activism. Similarly, the impact of new modes of governance and ‘soft law’ have not solely been interpreted as indication that the CJEU’s contribution to the EU’s ‘integration through law’ identity has been marginalised, for at least three reasons. First, several authors argue that soft law is an extremely efficient tool to regulate European and national public policies, in pointing to the shadow of hierarchy coming from the CJEU. In other words, member states prefer to agree on soft law rules for which the CJEU has no say, precisely because, if they fail to do so, the CJEU could issue a ruling that would apply to all member states (Scharpf 1994; Héritier and Lehmkuhl 2008). Thus, the CJEU would indirectly help to build the EU’s legal identity by inciting the member states to elaborate rules. Even when the Court triggers ‘integration through soft law’, it is still a form of legal identity building. Second, some policy domains have evolved from soft law to hard law and, in so doing, have enlarged the scope of the Court’s control (Terpan 2015). Such is the case with immigration, asylum and other fields related to the area of liberty, security and justice, since the Treaty of Amsterdam. Since the Treaty of Lisbon, this has also been the case with the European Charter of Fundamental Rights, which has become a legally binding commitment. Third, law in the form of directives, regulations and decisions, still play a crucial role. This may be due to the fact that the EU responds to conflict and crisis situations with further regulatory integration. As Genschel and Jachtenfuchs (2013: 3) underline, conflict and crisis situations ‘in turn increase national differences and thus perpetuates the vicious circle of regulatory integration and increasing salient national identities’. A number of publications since 2010 even insist on the continued judicialisation of the EU, in an attempt to explain why this process has not stopped (Maduro and Azoulai 2010; Kelemen 2011; Schmidt 2012, 2018). Two mechanisms are stressed in this context. The first mechanism is the process of liberalisation and judicial reregulation, which derives from the creation of the European Single Market. By referring cases to the CJEU, new players, such as companies and interest groups, have, once again, contributed to the reinforcement of the Court influence in creating a European ‘integration through law’ identity. The second mechanism is the Reprinted from the journal

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EU’s fragmented institutional structure. The fragmentation between the European and national level, as well as among EU institutions, has generated principal-agent problems encouraging the establishment of strict, judicially enforceable goals, based on transparent and accountable procedures. In fragmented systems, policy-makers have an increasingly difficult job to build the majorities needed to pass their new legislation (Skowronek 1982; Garrett et  al. 1998; Pollack 2003; Jones et  al. 2016; Davies 2004; Kelemen 2011. For an opposing view, see Martinsen (2015a). The Court’s ‘judge-made law’ created a genuine intra-community solidarity (Vauchez 2008: 135), which turns the Court into the real engine of European integration and the identity builder of ‘integration through law’. While from the 1960s to the 1990s a consensus in the literature stressed the contribution of the Court to identity construction of the EU, this consensus has been replaced by opposing views. In our view, there are sufficient arguments to maintain the idea of ‘integration through law’ and of the Court’s significant contribution to the EU’s identity. This contribution might be less central, but it has not disappeared. We now turn to the question of the content of the Court’s rulings. In other words, is the CJEU a biased Court in the sense that it would systematically give priority to the internal market and competition rules over considerations such as human and social rights? To answer this question, we will study a selection of CJEU’s landmark rulings in three policy areas.

Legal identity in different policy areas: is the CJEU market oriented? Beyond the Court’s path breaking and widely known rulings in which it established the direct effect (van Gend en Loos 26/62) and primacy (Costa vs. Enel 6/64) of European law, the Court is perceived to have contributed to the integration of a wide array of policy areas. One main argument in the literature on the Court is that this pro-integration case law had a purpose, which is building an internal market based on the free movement of goods, persons, services and capitals (Jacquot 2015; Scharpf 2009, 2013, 2016; Kaupa 2013; Garben 2017; Schmidt 2018). The pro-market bias of the Court is even said to have increased since the early 1990s, due to two major factors. First, in a period where the Court’s central position in the European Union is challenged, the Court would more reluctantly engage in new areas of legal interpretation, restraining itself to more secure (and long-standing) areas such as fostering the internal market. Second, in a time of multiple crises, the Court would stick to the member states’ preferences and/or support a market-oriented vision of the EU consistent with the position held by a majority of states, or by the most powerful ones. In this section, we show that this understanding is also less consensus-based as it might seem. A group of legal scholars and political scientists put forward arguments showing that the Court’s contribution to identity building in the EU is not solely motivated by economic integration and the building of the internal market. In order to illustrate this debate, we focus on three policy areas where the Court has widely ruled and exerted a significant policy-making function. The first one is the field of free movement of goods and competition law. It directly captures the notion that 95

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the Court defends market economy. The two other categories go beyond the idea of economic integration based on free trade and competition. They deal with social and health policies and the protection of human rights. In these policy areas, we study to what extent the Court interprets law through the lenses of market integration or takes also other grounds and dimensions into consideration. Free movement and the internal market as core notions of EU’s legal identity The first argument in support of the idea that the Court’s case law is market oriented is the extent to which the European judges have extended the scope of the four liberties, in particular the free movement of goods, and competition law. With the free movement of goods, the Treaty on the Functioning of the European Union (TFEU) prohibits customs duties on imports and exports (tariff barriers), quantitative restrictions (non-tariff barriers), as well as charges and measures having an equivalent effect (i.e. protectionism ‘in disguise’). Non-tariff barriers have proven more difficult to eradicate than tariff barriers, due to the high number of national rules applying in this field. The Court has interpreted the notion of measures having equivalent effect to quantitative restrictions in an extensive manner  so as to foster market integration (Dassonville 8/74). Later, in the case of Cassis de Dijon (120/78), the Court stated that, aside from a limited number of derogations, there is no valid reason why ‘provided that goods have been lawfully produced and marketed in one of the member states, they should not be introduced into any other member state’ (principle of mutual recognition). However, there are limits to the idea that the Court has constantly ruled in favour of removing barriers to intra-European trade. The principle of mutual recognition has had to be balanced with the need to respect both the mandatory requirements (‘rule of reason’) and exceptions provided by article 36 TFEU. Moreover, the Court has put limits on its own interpretation since the early 1990s and the Keck and Mithouard rulings (C-267 and 268/91), which reduced the scope of the prohibition of quantitative restrictions (Friedbacher 1996). In spite of this cautiousness with regard to ‘rule of reason’ (Cassis) and the scope of the prohibition of quantitative restrictions (Keck), the free movement of goods is an area where the Court has acted as a policy-maker, in accordance with the idea of ‘integration though law’. This is confirmed by the fact that little secondary legislation of direct importance has been adopted in this area of EU law, with the exception of Directive 70/50, Regulation 764/2008 and Directive 98/34 (Foster 2014: 305). The jurisprudence of the Court has been considered sufficient to eliminate the main barriers to trade, and member states did not follow up with secondary law. More recently, and in the context of the Eurozone crisis, the Court has continued to issue rulings fostering economic integration. For instance, it has ruled on the conditions for the establishment and functioning of a competitive internal market, such as in the Vodafone ‘roaming’ case (C-58/08). In 2002, the EU has adopted a regulatory framework for electronic communications, networks and services, which laid down maximum charges that mobile phone operators could charge for calls made and received by users outside their own network. The leading European mobile Reprinted from the journal

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telephone operators challenged the validity of the regulation before the High Court in the UK. The High Court referred a question on the validity of the regulation to the CJEU. The Court replied that the European legislature had not infringed the principles of subsidiarity and proportionality. This case provides a good example of how the CJEU sets the limits of what is—or is not—justified on the grounds of treaty provisions, in order to help establish the internal market. Hence, the idea of ‘market integration through law’ is far from being obsolete. However, by studying two other policy areas related to social/health policies and human rights, the literature stresses that the idea of a Court being only market biased is over simplistic. Over time, the CJEU has shaped the EU’s legal identity in many different ways, going beyond ‘market integration through law’.

Social and health policies through and beyond market integration It has been convincingly argued that the CJEU has extended the scope of the four fundamental freedoms (goods, persons, services and capitals) to politically and economically highly sensitive areas of social and health policies. This trend was described as a specific functional spill over effect (Kelemen and Schmidt 2012). The widely commented Kohll/Decker jurisprudence (see Obermaier 2008) together with the Martinez Sala (C-85/96) and Grzelczyk (C-184/99) judgements with regards social citizenship illustrate this evolution. In Kohll (C-158/96), a Luxembourg citizen saw his national health insurance provider refuse to authorise and reimburse his dental treatment after seeing an orthodontist in Germany. In Decker (C-120/95), Nicolas Decker was refused reimbursement by his Luxembourg health insurance for a pair of glasses he had bought in Belgium using a prescription from a Luxembourg ophthalmologist. The reasons for restricting a patient’s mobility, as stated by several member states during the proceedings, were either that the freedom to provide services did not apply to national social protection systems or that, if it did apply, then prior authorisation procedures for healthcare expenditure abroad was needed, i.e. Mr Decker should have asked his health insurance provider if he could look for glasses outside Luxembourg, and if the cost of purchase would be reimbursed. The CJEU, with the support of the Commission, applied the principles of free movement of goods and freedom to provide services to the Luxembourg healthcare system. France, Germany, the UK and other member states argued that the Court had unjustifiably interfered in the organisation of domestic social protection systems, and that its ruling imposed on Luxembourg could not be applied to their own social protection systems. Yet, the Court gradually extended the legal principles to other member states and to similar cases. In its subsequent jurisprudence, such as Müller-Fauré (C-385/99), the Court of Justice has made clear that restricting patients to receiving medical services from their domestic health systems is often contrary to EC Treaty rules on the freedom to provide services, particularly where the treatment is not in-patient (Davies 2004). Thus, the Court ‘came to include all healthcare systems, public and private provision, and gradually limited the justified scope of national conditions’ (Vollaard and Martinsen 2017: 145). This evolution 97

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has been identified as a ‘de-territorialisation of welfare’ (Martinsen 2005b; Vollaard et al. 2016; Schmidt et al. 2018), and as a process through which the Court has had tremendous influence (Martinsen 2005a, 2015b). In those rulings, the Court not only applied extensively the free movement of persons and the freedom to provide services, it also materialised the Union citizenship and extended social rights to both active and inactive citizens. A Union citizen should benefit from a right to equal treatment simply as a citizen of the Union. The status of citizen, enshrined in the Maastricht treaty, was made concrete in the social field. However, this Court’s line of interpretation has been nuanced, or even altered, in more recent case law. In Stamatelaki (Aikaterini Stamatelaki vs. NPDD Organismos Asfaliseos Eleftheron Epangelmation, C-444/05), the CJEU seems to have taken into account the member states’ fear that its rulings would seriously undermine the financial balance of a social security system, and which should be balanced with the freedom to provide services and access health care in another member state. Other cases like Commission v. France (C-512/08), Commission v. Spain (211/08) and Commission v. Luxembourg (C-490/09) have also nuanced the possibility to benefit for cross-border health care. With regard to social citizenship, the Dano judgement in Case C-333/13, confirmed by Alimanovic (C-67/14) and García-Nieto (C-299/14), has been presented as a ‘turnaround’ in the Court’s case law (Blauberger et al. 2018: 6). Since Dano, the Court develops a more restrictive approach of social citizenship, taking into account Directive 2004/38 to prevent benefit tourism instead of promoting free movement. While citizenship rights are not threatened per se, even in a challenging context as was the Eurozone crisis since 2008 (Šadl and Madsen 2016), they have been specified and adjusted over time. Does this Court’s case law entrench the idea that the Court is market oriented? Does it prove that the Court has only one objective—economic integration—and that this objective must be fulfilled by any means, even if it undermines social welfare? While the spill over from market integration to the social field has been convincingly demonstrated, we also find arguments in the literature, which might question the idea of the Court’s solely market-oriented contribution to the European ‘integration through law’ identity. First, the internal market is an area where the Treaty provides clear obligations for the member states, compared to health and social policies where general and imprecise objectives are defined. This does not necessarily mean that the judges, individually as well as collectively, have an ideological bias towards market integration, but rather that they act in a more precise legal framework than that existing in other policy areas. With regard to the four freedoms, they are constrained by Treaty provisions and secondary legislation much more than they are in social and health areas, where soft law and new modes of governance are widely used (Fredman 2006). Not surprisingly, the abovementioned shift in the Court’s case law corresponds with the adoption of secondary legislation on social issues, which exerted influence on the Court. This leads to a second argument: the Court seems to be reactive to politicisation (Blauberger et  al. 2018) and the changing public debate on social issues. To Reprinted from the journal

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say it differently, the Court does not live in a political vacuum (Saurugger and Terpan 2017) and adjusts its interpretations when confronted with strong reactions in the member states. For example, when adopting its first rulings on cross-border health care in the 1990s, the Court did not envisage the difficulties they would create (Greer and Jarman 2012: 267). As the member states reacted, sometimes strongly against it, the Court added clarifications to existing rules in further rulings. Deviations from internal market principles were allowed and specified. Obermaier explains the ‘fine-tuning’ of the Court’s case law as a result of some very negative reactions by the member states towards the Kohll/Decker jurisprudence, and of the need to be pragmatic in order to ensure compliance from recalcitrant member states (Obermaier 2009). Eventually, the Court’s case law triggered a legislative procedure, which led to the adoption of the Patients’ Rights Directive in Cross-border Healthcare (2011/24/EU). This directive has not aligned with the Court’s case law as the Commission proposed, but rather, has responded to the case law by allowing more national control of cross-border care (Martinsen 2015a: 181; Blauberger et al. 2018; Blauberger and Schmidt 2017; Thym 2015. For a different point of view, see Davies 2018). Third, deciding whether the Court’s case law reflects a market-oriented or a more social identity is a tricky question, as it entails the obligation to give an interpretation of the Court’s legal interpretations. Clearly, the academic interpretations that we found in the literature are far from being consensual. On the one hand, several scholars argue that the Court has promoted “transnational solidarity”: the four freedoms have been used to promote “market solidarity”, while the Court also developed “Communitarian solidarity” by granting social rights to the Union citizens (De Witte 2012, 2015). Another group of scholars, on the other hand, consider that the granting of social rights to the citizens supports the idea of a market-oriented identity of the Court, as it undermines the financial balance of the national social security systems, and creates other public policy risks. As Martinsen put it, the Court has ‘entered a conflict-ridden terrain between the market freedoms of the European Union and the redistributive competences of the member states’ (Martinsen 2015a: 142). Following this line of argumentation, it is only when the Court limits the individual rights of the citizens, in order to protect national welfare that it distances itself from a market-oriented identity. Notwithstanding these controversies, we argue that there is sufficient evidence in both the Court’s jurisprudence and the literature for us to conclude that the Court is not solely motivated by the completion of the internal market and contributes more widely to a multifaceted integration through law. A similar line of argument can be found in the analysis of the Court’s fundamental rights rulings.

The protection of fundamental rights Is there a contribution of the CJEU to the building of a rule of law identity through judgements protecting fundamental rights? It is widely acknowledged that the European Court has contributed to the constitutionalisation of the European integration process by strengthening the protection of human rights. 99

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Originally, the Treaties did not include a catalogue of rights and freedoms. The Court has compensated for this absence through the application of so-called general principles of European law. The case of Internationale Handelsgesellschaft (11/70) was the first step in a process through which the European Court ensured the effective application of human rights in the EU using general principles of European law. In a way, an ‘unwritten bill of rights’ (Schütze 2012: 411) has emerged thanks to the Court’s jurisprudence. What precisely triggered the Court’s attitude in the field of human rights, and hence its contribution to a fundamental rights identity of the EU, remains unclear. A first argument stresses that the Court has been ‘on the offensive’ when it comes to human rights, spreading legal norms at national level through the use of legal instruments (Weiler and Lockhart 1995). A second thesis posits that the Court has developed its human rights jurisprudence ‘defensively’, i.e. to cope with the risk that national courts might refuse to apply European law for reasons linked to the protection of human rights—in particular in Italy and Germany, where human rights are sensitive for historical reasons (Davies 2012). These two explanations are not incompatible. The Court’s rulings have always been linked to the opportunities that the social and political environment provides over time. However, the creation of general principles of EU law to defend fundamental rights has not always been unanimously welcomed by the member states and the legal doctrine alike. One recent example of this is the Court consecrating the existence of a general principle prohibiting discrimination on the grounds of age, in Mangold (C-144/04), independent of the Employment Equality Directive (Schiek 2006) and any other EU legislation on the topic. According to the Court, this principle stems from the constitutional traditions of the member states and various international instruments applicable to the EU institutions and member states. The Mangold ruling triggered a strong reaction in Germany, with German high-level personalities launching the ‘Stop the ECJ’ campaign against the judicial activism of the Court (Herzog and Gerken 2008). But the same judgement has also been presented in the legal doctrine as an expression of solidarity (Fontanelli 2011). Since the entry into force of the Lisbon Treaty, the European Union is endowed with a whole catalogue of fundamental rights. The Charter of Fundamental Rights of 7 December 2000, as adapted at Strasbourg on 12 December 2007, has the same legal value as the Treaties. This makes the Court the guardian of the Charter, or at least the guardian of some of the Charter’s provisions, and opens another possibility to contribute to the construction of a fundamental rights identity of the EU through its rulings. We find this contribution to the EU’s fundamental rights identity also through the Court’s case law on privacy and data retention. In the cases of Digital Rights Ireland (C-293/12 and C-594/12), Schrems (C-362/14), Tele2 (C-203/15 and C-698/15) as well as in Opinion 1/15, the Court has used article 7 (private life) and 8 (protection of personal date) of the Charter of Fundamental Rights in the EU to protect European citizens from mass surveillance programmes decided by public authorities in both Europe and the USA. These rulings have forced the European Union to change its internal legislation with regard to data retention and to negotiate with the USA a new framework for data transfer from Europe to the USA. In doing so, the Court has Reprinted from the journal

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provided large interpretations of the rights to private life and personal data protection so as to limit digital surveillance. The rise of the illiberal democracies in Eastern Europe, more precisely in Poland and Hungary, might give other opportunities for the Court to develop the fundamental rights identity, provided that case be brought before it by the Commission. This has been the case with a recent procedure that the Commission has opened against the reform of the Supreme Court in Poland, which endangers the independence of the judicial system in this country. However, the idea of the CJEU being a defender of human rights has also been challenged, in particular by those who view the Court as primarily market oriented. More specifically, the latter argue that human rights are defended by the Court only when it helps fostering economic integration, and that protecting human rights is always secondary when confronted with the internal market (Coppel and O’Neill 1992). It is also said that the European Charter of Fundamental Rights cannot counterbalance the market orientation of the Court due to the weakness of its social dimension (Kornezov 2017). In this sense, many observers have drawn general conclusions from the analysis of the Viking and Laval rulings (C-438/05 and C-341/05), arguing that the Court in any case privileges market integration over human rights and fundamental freedoms. While it is true that in some cases the Court renders decision where the fundamental and social rights identity analysed earlier seems not to be a priority, the conflict between the economic and the human and social rights identity might be slightly more complex than a binary interpretation let us to believe. The Viking ruling is a good case in point. Here the Court has accepted limitations to the right of strike, arguing that this right has to be exercised in a proportionate manner, and therefore can be restricted in order to preserve the freedom to provide services in the European Union. The reason why the Court has taken this position could be that it favours market integration. It is equally possible that the ruling reflects the defence of the four freedoms, which are fundamental obligations arising from the treaties, but also symbols on which the EU’s identity is based, situated at the centre of the European integration project. Hence, the Court’s jurisprudence seeks for a balance between two different kinds of basic EU identities that are considered equally important for the citizens (free movement and the right to strike). In this case, the balance might not be achieved, as several scholars pointed, due to the severe restrictions that were applied to collective action. In other rulings like Omega (C-36/02), or Sayn-Wittgenstein (C-208/09), the balance was much more favourable to fundamental rights (human dignity in Omega, and the status of the state as a Republic in Sayn-Wittgenstein), showing that the Court does not systematically discard fundamental rights when they clash with fundamental freedoms (De Vries 2013). If we acknowledge that the protection of fundamental—non-market—rights is sometimes balanced with economic integration in the jurisprudence of the CJEU, we also observe situations where fundamental rights yields to other imperatives, such as the autonomy of the EU legal order and the monopoly of the Court in ensuring compliance with this legal order. The debate over Opinion 2/13 illustrates this argument. The Treaty of Lisbon has provided a legal basis (Art. 6(2) TEU), which explicitly foresees the possible accession of the EU to the European convention on Human 101

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Rights (EcHR). As a consequence, negotiations with the Council of Europe started in 2010 and came to an end with the signing of a draft agreement (April 2013). The Commission asked the CJEU for an Opinion on the Draft Agreement, which was released in December 2014 (Opinion 2/13). Contrary to advocate general Kokott, the Court held that the draft agreement was not compatible with the EU Treaties for a series of reasons. The central argument put forward by the Court was that the EU’s accession to the EcHR could endanger the autonomy of EU law. Scholars and experts composing the legal doctrine have been very critical with regard to Opinion 2/13. The Opinion seemed to give utmost priority to the autonomy of the EU legal system, regardless of the objective of EU accession to the EcHR, which is, yet, grounded in the Treaty. The CJEU’s opinion illustrates how it continues to take an active position on issues central to the European integration process and to defend its position in the integration process. The autonomy of the EU’s legal order and the monopoly of the CJEU in interpreting EU law enables it to adopt such a position. Hence, there are clearly limits to the role played by the CJEU in defence of fundamental rights. Protecting the market is one of these limits, among others (like the autonomy of the EU legal order). But here again we are confronted with the complexity of the legal identity debate. When the Court defends market integration, it is framed as the protection of a fundamental right. The fact that Court tries to strike a balance between different rights—for example: the right to strike and the freedom to provide services—does not mean that the internal market is the only legal identity it is promoting. There is sufficient evidence in the literature to say that, before and after the Charter has become legally binding, the promotion of human rights is also one of the Court’s contribution to the EU’s legal identity.

Conclusion The Court of Justice of the European Union has indeed contributed to specific European identities, both across areas, known as horizontal ‘integration through law’ and within the content of specific public policy. The longitudinal analysis of the Court’s contribution to identity building has, however, shown that this is not a linear process, which could be measured in absolute terms. As for national courts, or institutions more generally, its contribution to identity must be understood as a process, and as a result of, external and internal constraints based on (1) legal frames (the Court cannot make interpretation that would be totally inconsistent with the treaties and secondary legislation or that would not result from a coherent legal reasoning); (2) the positions of the member states’ authorities and their ability to accept and apply CJEU rulings; (3) controversies over CJEU rulings, which create a doctrine that needs to be taken into account by the Court in its judgements; (4) the impact of the rulings on the society. The result of our analysis based on these constraints is twofold. First, scholarly— as well as legal—commentaries have constructed the CJEU’s role as the cornerstone of the EU’s horizontal ‘integration through law’ identity. While the Court has been considered to have become less central in European integration since the 1990s, its rulings in specific areas, such as fundamental rights, still have an impact. This is due Reprinted from the journal

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to the structural fact that the treaties still assert the Court’s role to decide on judicial questions, but also because the Court continues to push the boundaries of EU law beyond the treaties in a small number of cases. Second, the perceived binary policy bias describing the CJEU as defending a purely market-based identity of the EU is not as clear-cut as it might seem. Economic negative integration is indeed a central element of the Court’s jurisprudence, because it is a central element of the treaties and an objective widely shared by the EU institutions and member states. But the Court has also defended social rights and human values as part of the EU’s legal identity, in particular through the general principles of European law. The inclusion of the Charter of Fundamental Rights in primary law since the Lisbon Treaty (2009) has opened up the legal possibility for the Court to refer to the Charter as a legally binding rule. This might reinforce the tendency for the Court to act as the defender of the citizens and their individual as well as collective rights. When the Court seeks to foster both market integration and social and human rights protection, the process is an example of conflictual identity construction as several articles in this special issue point out. Beyond this complexity of identity construction based on controversies, we do indeed observe the assumption according to which EU organisations have a greater capacity to construct an identity in domains that are more supranational. The Court’s contribution to the content of legal identities seems to be higher in policy fields where supranational integration is high, such as economic integration. Similarly, the Court’s contribution to the EU’s human rights identities seemed to increase with the creation of the European Charter of Fundamental Rights. However, this assumption is nuanced by the idea that the higher the degree of public scrutiny, both from citizens and member states, the higher the probability that the Court issues more cautious rulings in the contested policy areas. Acknowledgements The authors would like to thank the participants of the workshops held at Sciences Po Paris and Johns Hopkins University in Bologna for very useful comments, and in particular Mark Thatcher and the two referees for the suggestions and remarks which extensively helped to improve the article. The usual disclaimer applies.

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The EU’s legal identities and the Court of Justice of the EU Schmidt, S.K. 2018. The European Court of Justice and the policy process: The shadow of case law. Oxford: Oxford University Press. Schmidt, S.K., M. Blauberger, and D. Sindbjerg Martinsen. 2018. Free movement and equal treatment in an unequal union. Journal of European Public Policy 25(10): 1391–1402. Schütze, R. 2012. European constitutional law. Cambridge: Cambridge University Press. Semmelmann, C. 2013. General principles in EU law between a compensatory role and an intrinsic value. European Law Journal 19(4): 457–487. Skowronek, S. 1982. Building a new American state: The expansion of national administrative capacities, 1877–1920. Cambridge: Cambridge University Press. Slaughter, A.M., A. Stone Sweet, and J.H.H. Weiler (eds.). 1998. The European Court and national courts: Doctrine and jurisprudence: Legal change in its social context. Oxford: Hart Publishing. Stein, E. 1981. Lawyers, judges, and the making of a transnational constitution. American Journal of International Law 75(1): 1–27. Stone Sweet, A. 2000. Governing with judges: Constitutional politics in Europe. Oxford: Oxford University Press. Stone Sweet, A., and T.L. Brunell. 2004. The judicial construction of Europe. Oxford: Oxford University Press. Stone Sweet, A., and J. Caporaso. 1998. From free trade to supranational polity: The European Court and integration. In European integration and supranational governance, ed. W. Sandhotz and A. Stone Sweet, 92–133. New York: Oxford University Press. Storgaard, L.H. 2015. EU law autonomy versus European fundamental rights protection—On Opinion 2/13 on EU accession to the ECHR. Human Rights Law Review 15(3): 485–521. Terpan, F. 2015. Soft law in the European Union—The changing nature of EU law. European Law Journal 21(1): 68–96. Thym, D. 2015. The elusive limits of solidarity: Residents rights and social benefits for economically inactive Union Citizens. Common Market Law Review 52(1): 17–50. Van den Herik, L., and N. Schrijver. 2008. Eroding the primacy of the UN system of collective security: The judgment of the European Court of Justice in the Cases of Kadi and Al Barakaat. International Organizations Law Review 5: 329–338. Vanhala, L. 2010. Making rights a reality?: Disability rights activists and legal mobilization. Cambridge: Cambridge University Press. Vauchez, A. 2008. The force of a weak field: Law and lawyers in the government of the European Union (for a renewed research agenda). International Political Sociology 2(2): 128–144. Vollaard, H., and D.S. Martinsen. 2017. The rise of a European healthcare union. Comparative European Politics 15(3): 337–351. Vollaard, H., H. van de Bovenkamp, and D.S. Martinsen. 2016. The making of a European healthcare union: A federalist perspective. Journal of European Public Policy 23(2): 157–176. Weiler, J.H.H. 1981. The community system: The dual character of supranationalism. Yearbook of European Law 1(1): 257–306. Weiler, J.H.H., and N.J. Lockhart. 1995. ‘Taking rights seriously’ seriously: The European Court and its fundamental rights jurisprudence-part 1. Common Market Law Review 32(1): 51–94. Werner, B. 2016. Why is the Court of Justice of the European Union not more contested? Three mechanisms of opposition abatement. Journal of Common Market Studies 54(6): 1449–1464. Wind, M. 2010. The Nordics, the EU and the reluctance towards supranational judicial review. Journal of Common Market Studies 48(4): 1039–1063.

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Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France), and research fellow at Pacte. Fabien Terpan is Associate Professor in Public Law at Sciences Po Grenoble and Deputy Director of the research centre CESICE.

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Comparative European Politics (2019) 17:567–584 https://doi.org/10.1057/s41295-019-00175-4 ORIGINAL ARTICLE

Common market, normative power or super-state? Conflicting political identities in EU asylum and immigration policy Sandra Lavenex1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract Drawing an analogy to the role of immigration policy in processes of state formation, this article argues that the development of common asylum/immigration policies is indicative of the normative tensions implied in the EU’s transition from a regulatory polity towards a political Union. Based on an analysis of key legislative texts from the emergence of common immigration policies until today, it is shown that policy developments are torn between three competing and conflicting political identities. The EU’s traditional ‘market power’ identity anchored in a regulatory approach focused on economic priorities has given way to an uneasy competition between aspirations at ‘normative power’ identity based on universal liberal values and a politically predominant ‘statist’ identity that addresses asylum/immigration policies as a corollary of and challenge to internal community-building and security. While these tensions are characteristic of the ‘liberal paradox’ of democratic states’ immigration policies, they are particularly challenging in the context of an increasingly contested European integration project. Keywords Asylum · Immigration · AFSJ · EU · Statehood

With its transition towards a political Union affecting ‘core state powers’ (Genschel and Jachtenfuchs 2013), the EU has relinquished its traditional image of a technocratic, apolitical ‘regulatory polity’ (Majone 1997). The recent crises have disclosed the redistributive impact of common monetary policies and the humanitarian shortcomings of common asylum policies. This has evoked a vivid debate about the normativity of European integration. Attention has turned towards the ‘normatively problematical aspects of political order’ (Joerges and Kreuder-Sonnen 2017, p. 122) eventually motivating a more interpretative turn in EU studies. The development of

* Sandra Lavenex [email protected] 1

Université de Genève, Geneva, Switzerland

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common asylum and immigration policies is a fascinating field for studying processes of political identity construction in the EU and the values involved (Saurugger and Thatcher 2019). This is for two reasons. The first is the inherent link with sovereignty. The second is the normative tensions intrinsic to (western) liberal migration and asylum policies. European migration policies affect state sovereignty from within and from without. Internally, the abolition of internal migration policies implied by freedom of movement deprives member states of their sovereignty over the admission of EU citizens and long-term resident third-country nationals. Externally, the development of common European policies regarding third-country nationals amplifies this retreat of state sovereignty and symbolizes the EU’s appropriation of quasi-statist features. The redefinition of sovereignty in a multilevel context shifts responsibility for the political values embedded in common policies to the European level. This responsibility constitutes a challenge to EU institutions both because of the fundamental tensions underlying liberal states’ asylum and immigration policies and because of the EU’s own unsettled compromise between common market, normative power (Manners 2002) or super-state in the making. The tensions underlying western asylum and migration policies stem from the values of security and community on the one hand, which, deriving from the particularism of (state) sovereignty, emphasize the need to control and limit immigration, and the values of freedom and human rights on the other hand which, deriving from liberal universalism, command openness. Herewith the EU faces what scholars have coined the ‘liberal paradox’ (Hollifield 1992): the difficulty to satisfice the liberal quests for economic openness and humanitarianism with political demands for closure. Together with the sensitivity implied in the vertical transfer of authority and the EU’s unsettled constitutional compromise between market integration, vocation to liberal values and the development of core state powers, these normative tensions put a particular strain on the development of common European policies. This manifests not only in incoherent policy outputs, but also institutional battle grounds which, as we will argue, are not conducive to the definition of a common European political identity. The article opens with a historical and theoretical reflection on the co-constitutive relationship between migration/asylum, sovereignty and liberal values in processes of state formation. This section serves as a broader contextualization of the development of European political identity with regard to migration in analogy to the development of nation states. We then turn to the actors and processes shaping the EU’s identity and values in the field of immigration policies from the beginnings of cooperation in the 1980s until today. Based on an analysis of primary documents from the EU’s main decision-making institutions and echoing earlier studies (in particular Lavenex 2001; Menz 2015), three distinctive political identity constructions are distinguished, all carried by different actor constellations and political opportunity structures: 1. The ‘statist’ identity defended in particular on the part of the Council which, emphasizing the value of ‘security’, derives an EU competence in asylum and Reprinted from the journal

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immigration matters from the need to protect the aspired internal ‘Area of Freedom, Security and Justice’ against external threats; 2. The ‘normative power’ identity which, articulated mainly by the Commission and the European Parliament, seeks to emulate the universalist human rights standards enshrined in ‘World society’ (Manners 2002; DiMaggio and Powell 1983); 3. And the ‘market power’ identity (Damro 2012) expressed by Single Marketoriented directorates in the Commission which, drawing on the EU’s tradition as ‘regulatory state’ (Majone 1997), seeks to promote mobility from a primarily economic welfare-oriented perspective. Promoted by different institutional actors within the EU framework and responding to different sets of values and political priorities, these three policy identities compete in the development of a distinct and coherent overarching EU political identity. While reflective of fundamental tensions inherent in the migration policies of western liberal states, this article concludes that the EU’s unsettled constitutional compromise privileges the first, ‘statist’ approach vis-à-vis the two more ‘liberal’ ones. This generates ideational conflicts with the EU’s traditional roots in economic openness and it tends to undermine the EU’s aspirations at political Union based on a community of values.

Political identity and immigration policy We define political identity in a given policy field with Saurugger and Thatcher (2019, p. 30) as ‘the articulation of political values that are claimed to be fundamental…, shared… and distinct’ (idem. 2018, p. 20). In order to assess the emergence of an EU political identity in the field of immigration, we first review the evolution of migration policies in the context of European states. As with other core areas of statehood such as military or monetary affairs, the development of immigration policies has structurally been linked to the formation of sovereign states. The more states have evolved from territorial jurisdictions towards democratic welfare states, the more their immigration policies have become complex, addressing next to questions of entry and stay also economic, social and political entitlements (Lavenex 2018a), thereby reflecting the political values of the receiving societies and states’ political identity more broadly. The capacity to control territorial borders and the demarcation of citizenship has been conceived of as core components of modern statehood. As indicated in a well-known ruling of the US Supreme Court held in 1892: ‘It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to its self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe’. More than a century later, in 2004, the United Kingdom House of Lords confirmed that ‘the power to admit, exclude and expel aliens was among the earliest and most widely recognized powers of the sovereign State’ (Chetail 2014, p. 28). Consequently, large sections of political theory have come to 111

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see control over aliens’ entry and stay as quintessence of statehood: ‘theoretically[,] sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality and expulsion’ (Arendt 1973, p. 278). States’ attempt to seize control over immigration, however, started only relatively late around the turn to the twentieth century and intensified during World War I. The first step was the introduction of passports and other documentary controls on movement and identification, thereby enabling the monopolization of the legitimate means of movement (Torpey 2000). In Europe, the UK introduced first restrictions on immigration in 1905, and these were limited to Eastern European Jews. Up until then, it can be said that free movement rather than regulated migration was the norm (Chetail 2014). This development followed the advent of more exclusive forms of nationalism during the nineteenth century which were ‘specifically designed to promote national distinctiveness and solidarity’ (Zolberg 2000, p. 512). This included the official formulation of national histories or the promotion of the country’s official language alongside the discrimination of minorities (Anderson 1991). Exclusion of aliens has been instrumental to this process of political and societal inclusion, and the state’s capacity to control and select immigration has been framed as constitutive of internal security. This view is inherent to the vision of ‘communitarian’ political theorists like Michael Walzer (1983, pp. 38–39): ‘The distinctiveness of cultures and groups depends upon closure and, without it, cannot be conceived as a stable feature of human life. If this distinctiveness is a value, as most people (though some of them are global pluralists, and others only local loyalists) seem to believe, then closure must be permitted somewhere. At some level of political organization, something like the sovereign state must take shape and claim the authority to make its own admissions policy, to control and sometimes restrain the flow of immigrants. …The restraint of entry serves to defend the liberty and welfare, the politics and culture of a group of people committed to one another and to their common life’. As indicated by the document analysis below, the process of European community formation draws primarily on civic notions of citizenship, at the core of which is the freedom of movement within the EU. Later, this notion of citizenship has come to be complemented with social rights (Menz 2019) and more welfare-oriented discourses of ‘solidarity’. Culturalist elements associated with nation-building are nearly absent from supranational discourses. While this distinguishes European integration from nineteenth-century European state formation, it should be noted that culturalist discourses have proliferated at the level of the member states and find their expression in the rise of right-wing populist parties (Hooghe and Marks 2017; Hutter et al. 2016). Communitarian values emphasizing civic, social and cultural ties resonate with the particularist dynamics of political integration. They are, however, not uncontested. The consolidation of western states has occurred in conjuncture with the diffusion of liberal values many of which have universal aspirations. In this process, the meaning of sovereignty has come to encompass the responsibility to ensure the well-being of all individuals living within a sovereign territory and respect for their fundamental human rights (Bauböck 1994; Haddad 2003). Reprinted from the journal

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Three spheres of liberal rights can be distinguished that have historically been extended from citizens to migrants: the civil, economic and social rights for migrants living in a territory, the right to protection against refoulement for refugees and mobility rights for the economically active—later partially extended to citizens of regional integration projects. The extension of civil, economic and social rights to lawfully resident aliens and later partially also to irregular migrants have coined the notion of ‘denizenship’ in the literature (Hammar 1990), blurring the lines between citizens and non-citizens. The principle of non-refoulement is at the core of the international refugee regime and involves the prohibition to remove anyone to a country where he or she faces a risk of persecution or serious violations of human rights. Similar to the granting of denizenship, the principle of non-refoulement reflects commitment to universal liberal values that transcend the particularism of the state system. While the principle of non-refoulement applies to a wider range of persons in need of protection, the more limited notion of a refugee specified in the Geneva Convention entails also far-reaching entitlements towards the host country. As Haddad (2003, p. 9) points out: ‘If we assume that the international system asks that all individuals belong to a state, the refugee regime can be seen as an attempt to make refugees into “quasi-citizens”. The specific body of refugee rights … was created as a substitute for those citizenship rights available to individuals who follow the rules of international society and belong, as they should, to a specific state…’ (Haddad 2003, p. 9). The third main expression of liberal values in immigration policy is linked to the process of globalization and the gradual dismantling of economic boundaries. Market economies have expressed recurrent demand for foreign labour to fill job shortages, gain skills, or sometimes also suppress the costs of labour. Usually, these demands have been met via national immigration laws and bilateral labour treaties. Some regional integration projects such as Europe’s Single Market, the Mercosur in South America or African Regional Economic Communities have enshrined multilateral commitments to open up for the mobility of workers and other citizens, thus effectively entailing Member States’ voluntary renouncement of sovereign control over intra-regional migration (Lavenex 2018b). With western liberal states’ transformation towards knowledge-based service economies, mobile labour has become a factor of economic competitiveness in the quest for talent and skills. Whereas— apart from regional commitments—national legislation remains predominant for economic migration, states have agreed on limited provisions on the temporary mobility of professionals in the World Trade Association’s General Agreement on Trade in Services and in bilateral free trade agreements (Lavenex and Jurje 2015). Summing up, the development of immigration policies is a corollary of state formation. This constitutional bond is associated with an emphasis on sovereignty and the value of (internal) security. In liberal states, this process is permeated by liberal values of human rights and economic openness, which leads to a perpetual tension between particularist commitments and universalist aspirations. In the following, we retrace immigration policy discourses in the EU from their inception and explore their references to the prerogatives of state security, human rights and economic freedoms, respectively. 113

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Contests over values and identities in EU asylum/migration policies The EU’s evolution from a ‘regulatory polity’ (Majone 1997) focused on market integration towards a political Union with ‘core state powers’ (Genschel and Jachtenfuchs 2013) has been stated. The normative dimension of this evolution, the political values and identities that are invoked, appropriated and defended by the various architects of European integration has received less attention. This disregard may flow in parts from traditional integration theories’ (intergovernmentalism and neofunctionalism) primary concern with explaining European integration in terms of the conditions for ‘more’ or ‘less’ supranational competences (Kreuder-Sonnen 2016; Joerges and Kreuder-Sonnen 2017). The question ‘which’ Europe emerges which values and identities are expressed in the EU’s evolving institutions and policies have received much less attention. While this question seems particularly pertinent for core state powers such as monetary policy (McNamara 1998) or justice and home affairs (Lavenex and Wagner 2007), European integration has never been without normative implications. Fritz Scharpf’s work on Single Market integration (1999) has shown that several institutional factors genuine to the EU’s internal structures have tilted common policies towards market-making (neoliberal) policies focused on removing obstacles to trade and competition—in his terms ‘negative’ integration—while impeding ‘positive’, market-correcting integration in the sense of ‘the reconstruction of a system of economic regulation’, including social policy (1999, p. 45). Much in analogy to Scharpf, the following analysis shows that the development of an EU identity in immigration policy has been dominated by a ‘statist’ frame emphasizing the communitarian values of internal freedom of movement and political community-building over cosmopolitan liberal values (Lavenex 2018c). This identity has, however, never been uncontested and competes with the EU’s vocation at ‘normative power’ with strong commitment to universal human rights as well as with the EU’s economic aspirations at ‘market power’. Being promoted by different actors for different purposes, these three identities are partly in tension with one another and therefore fuel ongoing debates on the finalité and vocation of a European immigration policy—and more generally of the EU as a whole.

The statist identity: community-building and internal security The oldest and dominant frame derives EU cooperation in asylum and immigration matters from the internal process of political consolidation including the realization of freedom of movement and the discourses on European citizenship. From this perspective, cooperation is justified as necessary for the safeguarding of internal security in the EU after the abolition of internal border controls. Internal ‘freedom’ is thus seen as dependent on the maintenance of ‘security’ and protection from external threats. A functionalist connection is drawn between the realization of an internal ‘Area of Freedom, Security and Justice’ (as baptized in the Amsterdam Treaty) and the collective tightening of external borders. Reprinted from the journal

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This framing can be traced from the beginning of the discourses on a ‘Peoples’ Europe’ in the 1970s to the Rome Declaration marking the EU’s 60  st anniversary in 2017 until today. While establishing a neofunctionalist line of justification, deriving migration policy cooperation from the prerogatives of Single Market formation, this discourse also served to affirm the EU’s political identity and relevance vis-à-vis its citizenry. This corroborates Saurugger and Thatcher (2019) who argue that in processes of political identity formation cognitive frames are not only constitutive of actors but also the outflow of intentional, strategic action. The idea to remove controls on persons at the Community’s internal borders was first mentioned in a paper on European identity submitted by the Heads of State or Government to the Copenhagen Summit of December 1973. This suggested looking into the type of special civic and political rights which might be granted to citizens of the EU Member States in order to bring them closer to Community institutions and policies. The idea was taken up at the European Council meeting in Fontainebleau in June 1984 where the EU Heads of State or Government set up an ad hoc committee on a ‘People’s Europe’ chaired by former Italian MPE Pietro Adonnino with a view to respond ‘to the expectations of the people of Europe by adopting measures to strengthen and promote its identity and its image both for its citizens and for the rest of the world’ (European Council 1984). The Adonnino committee proposed the abolition of internal border controls alongside the expansion of internal free movement rights and the use of common symbols like the common flag and a European driver’s licence as most tangible instruments for fostering a sense of European belonging among Member States citizens. Welcoming these proposals, the Commission subsequently drew a link between internal mobility and the need to address immigration. According to the 1985 White Paper ‘Most of our citizens would regard the frontier posts as the most visible example of the continued division of the Community… Once we have removed those barriers, and found alternative ways of dealing with other relevant problems such as public security, immigration and drug controls, the reasons for the existence of the physical barriers will have been eliminated’ (Commission 1985, para. 11; emphasis added). Cooperation on migration thus came onto the European agenda together with mattes of internal security as compensatory measure for the safeguarding of internal security after the abolition of internal border controls. After the pioneering Schengen Agreement between five Member States in 1985, the ‘Coordinators group on the free movement of persons’ was created in 1988 to promote EU-wide cooperation in the matter. This was a subgroup of the transgovernmental network of the Member States’ interior ministries called TREVI who had been coordinating since 1976 on questions of internal security and public order. In 1989, the group issued the ‘Palma-Document’ that was to become the blueprint for the ensuing cooperation. According to its Title III, ‘The achievement of an area without internal frontiers could involve… a prior strengthening of checks at external frontiers’ and ‘determining the State responsible for examining the application for asylum’ (Coordinators Group 1999). The Preamble of the 1990 Dublin Convention marking the start of Member States’ cooperation on asylum repeated ‘the joint objective of an area without internal frontiers’. 115

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This frame of cooperation in view of protecting the Schengen area was maintained when asylum and migration were officially embraced in the Third Pillar of the Maastricht Treaty (Art. K1 ‘For the purposes of achieving the objectives of the Union, in particular the free movement of persons’). This reasoning that derives the necessity of cooperation from the challenges immigration poses to European integration permeates policy documents adopted under the Maastricht Treaty and is well reflected in an important Commission Communication of 1994 according to which: ‘The deepening of the European integration process calls for an Integrated and coherent response, which combines realism with solidarity, to the challenges which migration pressures and the integration of legal Immigrants pose for the Union as a whole. Failure to meet those challenges would be to the detriment of attempts to promote cohesion and solidarity within the Union and could, indeed, endanger the future stability of the Union itself’ (Commission 1994, Foreword). The vocation of the European Union as a power in the protection of human rights, in particular with regard to refugee protection but also migrant rights, or the demographic and economic demand for immigration, which are at the heart of the EU’s ‘market power’ identity (see below), is absent from this and other documents of the period.1 While the Amsterdam Treaty introduced a mandate for the development of genuine European asylum and immigration policies, and, moving these matters from the intergovernmental to the supranational first pillar, also engendered the mobilization of more normative and economic EU identities on the matter, the statist frame prioritizing internal community-building and security was preserved. This is reflected in its Title I Art. 3 which states the goal: ‘To maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’. Notwithstanding the emergence of competing identities under these Treaties and during the deliberations at the European Convention elaborating the (later dismissed) European Constitution (see below), this statist–protectionist approach has been preserved and permeates primary law and the majority of secondary laws in the matter. Article 3 of the Amsterdam Treaty became Article 2 of the Lisbon Treaty whose Title IV laying down the more detailed mandate reads ‘Visas, Asylum, Immigration and other policies related to the free movement of persons’. In sum, a parallel can be drawn to the Single Market project that was framed in terms of abolishing member states’ barriers to trade and not as a common system of market regulation (Scharpf 1999, p. 45): EU cooperation on migration and asylum was framed in view of protecting the EU’s internal ‘Area of Freedom, Security and Justice’ and not as genuine European migration/asylum policy following either socio-economic or human rights ambitions (Lavenex 2018c). As highlighted in the communitarian line of thinking about the relationship between state formation and immigration discussed above, this European identity has consistently been justified

1

If there are references to human rights so mainly in view of promoting human rights in countries of origin of asylum seekers and refugees in order to reduce the root causes of forced migration (Commission 1994, p. 22ff.).

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with member states citizens’ concerns and expectations in their transition towards EU citizenship. The following quote from a Commission Communication in 2004 illustrates this reasoning when it praises the ‘Area of Freedom, Security and Justice’ as ‘one of the most outstanding expressions of the transition from an economic Europe to a political Europe at the service of its citizens’ (Commission 2004a, b, Annex p. 4). This statist approach emphasizing internal security and community was iterated very clearly on the occasion of the 60th anniversary of the Rome Treaties in 2017 when the EU Heads of State or Government declared as first goal of the Union, even before prosperity and growth, ‘A safe and secure Europe: a Union where all citizens feel safe and can move freely, where our external borders are secured, with an efficient, responsible and sustainable migration policy, respecting international norms; a Europe determined to fight terrorism and organised crime’ (European Council 2017). The ‘normative power’ identity: image in the world and universal human rights The ‘normative power’ approach to asylum immigration policy emerges relatively late in the evolution of EU competences in the matter. It can be retraced to four partly parallel developments: the experience of the wars in the Western Balkans and the wave of solidarity brought towards the refugees in particular from Kosovo, the new mandate given by the Amsterdam Treaty, the process of Eastern enlargement entailing a clearer definition and the projection of core European values, and the deliberations in the European Convention centring on the norms underpinning an eventual European constitution. The main proponents of this identity have been the Commission and the European Parliament, as well as at least at the occasion of the Tampere European Summit, the EU Heads of State or Government. While the expanding human rights language in EU primary law has comforted the Commission in the endeavour to inject stronger normativity in its policy initiatives, the European Parliament has been a clear proponent of the human rights approach in the early years of JHA cooperation, but has gradually moved closer to the ‘statist’ position represented by the Council. The Tampere European Council Conclusions of October 1999 are particularly representative of the vocation towards a ‘normative power’ identity in asylum and immigration matters. They clearly anchor these policies in the Union’s attachment to universal liberal values and affirm the commitment to project these values externally to the rest of the world. Right after the introduction, under the title ‘Towards a Union of Freedom, Security and Justice: the Tampere Milestones’ the Council states the following: From its very beginning European integration has been firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law. These common values have proved necessary for securing peace and developing prosperity in the European Union. They will also serve as a cornerstone for the enlarging Union. The European Union has already put in place for its citizens the major ingredients of a shared area of 117

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prosperity and peace… This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders… (European Council 1999, para. 1–3, emphasis added). This quote not only affirms the Union’s attachment to liberal values but also emphasizes their universal scope and derives EU action on asylum and immigration from the EU’s traditional vocation to preserve and promote these values. In the field of asylum, this means that the ‘normative power’ identity emphasizes the human rights base of this policy rather than the need for coordination in order to avoid negative effects of the abolition of internal border controls as emphasized in the ‘statist’ identity: ‘The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement’ (ibid, para. 13). Secondly, the ‘normative power’ identity also involves extending the privileges accorded to EU citizens as far as possible also to legally resident non-EU nationals. Under the title ‘Faire Treatment of Third Country Nationals’, the Tampere conclusions state that ‘The European Union must ensure fair treatment of third country nationals who reside legally on the territory of its Member States. A more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens. It should also enhance non-discrimination in economic, social and cultural life and develop measures against racism and xenophobia’ (ibid, para. 18). In short, ‘The legal status of third country nationals should be approximated to that of Member States’ nationals’, including the rights associated with freedom of movement (ibid, para 21). Perhaps the most immediate concrete policy outputs flowing from this ‘normative power’ approach were the Commission’s proposals for directives on family reunification (1999) and on the status of long-term resident third-country nationals (2001), respectively. The directive on family reunification sought to establish common minimum standards for the right of legally resident third-country nationals to be joined by the members of their family, which is a right recognized in many international law instruments including the European Convention on Human Rights and the EU Charter on Human Rights. The normative frame reflected in the proposal met, however, stark resistance in the Council. After issuing its first proposal in 1999, the Commission had to table two amended proposals in 2000 and 2002 before a much watered-down directive was finally adopted in 2003. Dealing as little as possible with legal obligations and, where necessary, introducing minimum standards below those existing in national legislation, this directive hardly advanced the rights of third-country nationals residing in the EU. This was one of the reasons Reprinted from the journal

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motivating the European Parliament to take action before the European Court of Justice to strike down provisions which it considered in opposition to the protection of the family enshrined in Art. 8 of the European Convention of Human Rights (Lavenex 2006, p. 1291). The second principal instrument proposed in the wake of the Tampere Conclusions, the Long-Term Residents Directive adopted by the Council in 2003 also marks a clear setback compared to the Commission’s proposal. In particular, the Council watered down the principle of equal treatment with EU nationals by allowing the Member States to limit mobility rights for third-country nationals through national labour market preferences, the right to set numerical quotas on the admission of third-country nationals, and the requirement comply with certain ‘integration’ measures (Carrera 2005). This contestation of the rights-based approach by the Council is even more salient if one considers that free movement rights had de facto already been partly extended to legally resident third-country nationals by several rulings of the European Court of Justice since the mid-1980s.2 The ‘normative power’ identity of EU asylum and immigration policies is reflected—apart from the effort to expand the rights of legally resident third-country nationals—in an effort to create the basis for a common European asylum policy. The Amsterdam Treaty recognized the need to approximate national asylum systems as a precondition for the effective and fair application of the 1990 Dublin Convention and subsequent Regulation which introduced the principle of mutual recognition for the examination of asylum claims. The issue of asylum, however, also gained prominence with the deliberations in the European Convention preparing the ground for the European Charter of Fundamental Rights and the (dismissed) European Constitution. Generally speaking, Justice and Home Affairs, including asylum and immigration, figured prominently in the work of the Convention and many members of the Convention counted progress in these matters among Europe’s most important tasks (European Convention 2002, para. 6). The right of asylum, later included in the Charter of Human Rights, took a certain stage and deliberations reflect strong orientation at international legal standards and in particular the Geneva Convention and, to a lesser extent, other more general human rights treaties. Out of thirty amendments proposed to the Presidency’s draft, fourteen invoke an explicit reference to the Geneva Convention to justify their claim, three refer to the European Convention on Human Rights and four refer to the Universal Declaration of Human Rights.3 A comparison of deliberations on other, less strongly codified norms, such as minority rights and cultural diversity, also shows that asylum was not

2

Drawing on the principle of non-discrimination, the Court extended free movement rights first to posted workers who were long-term resident third-country nationals employed by European firms under the freedom of services (Rulings 12/86 Demirel [1986] ECR 37/9) and then to long-term resident thirdcountry national from countries with which the EU had signed association agreements containing relevant clauses, such as Turkey and Morocco (rulings C-192/89 Sevince [1990] ECR; I-3461, C-18/90 Kziber [1991] ECR 199). 3 Charte 4332/00, Draft Charter of Fundamental Rights of the European Union—amendments submitted by the members of the Convention regarding civil and political rights and citizens’ rights, Brussels 25 May 2000.

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among the contested themes at the Convention, despite its high degree of domestic politicization (Meyer and Engels 2002). If we can speak of contestation, it mainly concerned the Spanish insistence, already codified in the Amsterdam Protocol, to exclude EU citizens from this right. Cooperation on asylum also progressed outside the Convention in EU legislative processes. As in the case of the directives on legal migration discussed above, Commission proposals faced strong resistance from the member states. A case in point is the Asylum Procedures Directive adopted after several delays more than a year beyond the deadline set by the Amsterdam Treaty in December 2005. The aim of this directive was to set common minimum procedural standards for the examination of asylum claims. Providing for several exception clauses and generally cast in weak legal language, the directive faced strong criticism by both the European Parliament and refugee organizations such as the United Nations High Commissioner for Refugees UNHCR.4 As in the case of the Family Reunification Directive, this dissatisfaction led the European Parliament which, at the time, had only consultative rights, to challenge the directive in front of the Court (Lavenex 2006, p. 1291). If we look for the actor which has most consistently upheld the ‘normative power’ identity in asylum and migration matters at the EU level, this is undoubtedly the European Parliament. This stance was mirrored already in 1992 with the creation of a new standing committee entitled ‘Committee on Civil Liberties and Internal Affairs (LIBE)’ to emphasize the human rights dimension of what the Council referred to as ‘Justice and Home Affairs’. Herewith the Parliament clearly distinguished the matters relating to ‘human rights problems in the Community’ (European Parliament 1992) from the scope of the existing Committee on Legal Affairs and Citizens Rights (JURY)—thus symbolizing its detachment from the statist community-building frame of the Council, and, partly, of the Commission. This vocation to the protection of human rights inside the EU came as a surprise for some and spurred consternation among the member states (De Capitani 2010, pp. 125–126). While frequently antagonizing the Council, and in several instances challenging its agreed directives in front of the Court (see above), the ‘normative power’ approach adopted by the European Parliament also allowed it to develop an identity different from that of the other EU institutions and to therefore underline its claim for consultation and, from the Amsterdam Treaty onwards, co-decision in the legislative process (European Parliament 2008). The Lisbon Treaty gave the ‘normative power’ identity new support by recognizing the Charter of Human Rights as legally binding and eliminating the limits imposed on the Court of Justice. Consequently the Commission engaged in a comprehensive recast exercise proposing revised and allegedly improved versions of the directives adopted under the Amsterdam Treaty. In particular, the aim was to reduce the scope of discretion left to the member states by tightening common standards.

4 See European Parliament, report by Wolfgang Kreissl-Dörfler on the amended proposal for a Council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status adopted in Plenary on 25 September 2005, A6-0222/2005 and UNHCR press release of 30 April 2004.

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As detailed analyses have shown, however, the revised directives have made only limited progress compared to the first generation and the policy core—that is the policy identity of these instruments and has largely remained unaffected (Trauner 2016). Expectations that the Court of Justice could develop a stronger role in the development of a ‘normative power’ identity in asylum and immigration have also not materialized. Analysing the Courts’ jurisprudence under the new powers awarded by the Lisbon Treaty, Grainne de Burca comes to the conclusion that ‘there has been a remarkable lack of reference on the part of the Court of Justice to other relevant sources of human rights law and jurisprudence’. Given that ‘the procedural rules of the Court of Justice make it very difficult for actors with relevant human rights experience and expertise … to intervene or participate in proceedings … the risk … is a detached, autonomous and potentially insufficiently informed case law on a growing range of important human rights issues’ (De Burca 2013, p. 173f.). The crisis of the European Asylum System of 2015 has exposed the limits of ‘normative power’ in the EU’s asylum and immigration acquis. Rather than providing a system assuring protection for persons qualifying as refugees, existing EU regulations rather deterred access to national asylum systems, spurred distributive conflicts among the member states and failed to ensure common standards for recognition practices or asylum procedures (Niemann and Zaun 2018; Lavenex 2018c).

The ‘market power’ identity: economic competitiveness and the quest for labour The third-political identity deployed by the EU in its migration policies is the ‘market power’ approach (Damro 2012). In contrast to the ‘statist’ and ‘normative power’ identities, this approach takes a functionalist, apolitical stance and derives policy priorities from the economic needs of the Single Market in its global context. This approach was at the core of the internal free movement regime as fourth freedom of the Single Market. The economic perspective on immigration from third-country nationals, however, its importance for European labour markets, demographic development and economic growth, however, came relatively late on the EU’s agenda and remains contested. This perspective took shape in the context of the ‘Lisbon Strategy’ on economic growth based on a knowledge-based economy adopted by the European Council in Lisbon on 23/24 March in 2000 (European Council 2000), a link that intensified in the context of the economic recession starting in 2007/2008. Yet member states have hitherto opposed the idea to address economic immigration at the EU level. In the absence of a common economic immigration policy, this policy identity has materialized in a limited set of directives addressing only specific categories of temporary migrants and excluding an EU competence to determine volumes of admission (see below). Although each of these instruments was justified in terms of the ‘market power’ identity, by 2010, when the member states adopted the ‘Europe 2020’ strategy succeeding to the Lisbon strategy, reference to economic migration as an element for economic growth and competitiveness had vanished. The onset for an EU policy on labour migration was laid with a Commission Communication in 2000 which called for a ‘new approach to immigration’ given ‘the 121

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projected decline in population in the EU over the next few decades’ and ‘a growing recognition that, in this new economic and demographic context, the existing “zero” immigration policies which have dominated thinking over the past 30 years are no longer appropriate’ (Commission 2000, p. 6). The following Commission proposal for a common immigration policy (Commission 2001) detailed out common provisions without engaging with justifications based on economic or demographic arguments and only makes a cursory reference to the global competition for talent (Preamble, para. 6). After member states refused to engage with this proposal, the Commission changed its strategy and engaged in a more proactive framing strategy along the tenets of the ‘market power identity’ in carving its way into this domain (Menz 2015). This is clearly documented in the introduction to the Commission’s Green Paper on an EU Approach to Managing Economic Migration adopted at the end of 2004. Making references to the Lisbon objective, the Commission states that ‘even if the Lisbon employment targets are met by 2010, overall employment levels will fall due to demographic change. Between 2010 and 2030, at current immigration flows, the decline in the EU-25’s working age population will entail a fall in the number of employed people of some 20 million. Such developments will have a huge impact on overall economic growth, the functioning of the internal market and the competitiveness of EU enterprises. In this context, and while immigration in itself is not a solution to demographic ageing, more sustained immigration flows could increasingly be required to meet the needs of the EU labour market and ensure Europe’s prosperity. Furthermore, immigration has an increasing impact on entrepreneurship’. This discourse is even more pronounced in the Commission’s policy plan on legal migration of 2005 (Commission 2005) which in its preamble makes ample references to the Lisbon Strategy with its targets to turn the EU into ‘the most competitive and dynamic knowledge-based economy in the world’, to ‘make the Community more attractive to … workers from around the world and sustain its competitiveness and economic growth’. A particularity of this agenda is the participation of DG Employment and Social Affairs next to the DG Justice and Home Affairs usually in charge for migration within the Commission. Whereas a common European policy for economic migration is still lacking, the proposals realized under the Treaties of Amsterdam, Nice and Lisbon corroborate the priorities of the 2000 Lisbon Agenda concerning a knowledge-based economy and skill development. Directives were adopted for the admission of students (2004); researchers (2005); highly qualified workers (2009); and intra-corporate transferees (2014). The exception to this focus on skills is the directive on seasonal workers of 2014. Although the demographic situation in Europe and the global competition for talent have not really changed, the ‘market power’ identity over immigration policy has not evolved beyond these limited initiatives. This is also evident from policy discourse which has become more cautious on this socio-economic argumentation. Thus, the follow-up document to the 2000 Lisbon Strategy, the ‘Europe 2020’ strategy, only makes a very weak reference to economic migration policy. ‘Migration’ is mentioned only once under the Commission’s objective of an ‘Agenda for New Skills and Jobs’ (Commission 2010, p. 18) with the goal ‘to promote a forwardlooking and comprehensive labour migration policy which would respond in a

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flexible way to the priorities and needs of labour markets’. To date, this objective has not materialized into concrete policy output. The vanishing of this ‘timid’ ‘market power’ identity in immigration policy is also reflected in the 2017 Rome Declaration marking the 60th anniversary of the Rome Treaties. Accordingly, the EU Heads of State or Government agreed that ‘In the 10 years to come we want a Union that is safe and secure, prosperous, competitive, sustainable and socially responsible, and with the will and capacity of playing a key role in the world and of shaping globalisation’. Yet the issue of immigration is only mentioned in the context of the ‘statist’ identity under Article one: ‘A safe and secure Europe: a Union where all citizens feel safe and can move freely, where our external borders are secured, with an efficient, responsible and sustainable migration policy…’, it is not mentioned in Article two proposing ‘A prosperous and sustainable Europe: a Union which creates growth and jobs; a Union where a strong, connected and developing Single Market…open(s) avenues for growth, cohesion, competitiveness, innovation and exchange’ (European Council 2017).

Conclusion Drawing an analogy to the role of immigration policy in processes of state formation, this article has argued that the development of common asylum/immigration policies is indicative of the normative tensions implied in the EU’s transition from a regulatory polity towards a political Union. These normative tensions have been identified in three different policy identities embedded in EU asylum/migration legislation: the ‘statist’ identity addressing asylum/immigration policies as a corollary of and challenge to internal community-building and security; the ‘normative power’ identity emphasizing the EU’s external reflection in the world and vocation to universal liberal values; and the ‘market power’ identity anchored in the EU’s traditional regulatory approach focused on economic priorities. These three identities reflect fundamental tensions inherent to liberal states’ asylum/migration policies and indicate the general difficulty of defining a coherent approach to these complex matters. Whereas liberal states have over time institutionalized the three perspectives to immigration to different extents in their national constitutions, laws, political–administrative and judicial systems, thereby aiming at an (often imperfect) balance between the three, this is not yet the case at the EU level. Much like in the process of state formation, extra-European immigration has first been addressed from the territorial perspective of border management and as an issue of internal security. Coupled with the predominance of home affairs ministers in the Council of Ministers and the increasing politicization of immigration in the member states, this approach has remained predominant at the level of EU institutions and law. Both the Commission and the Parliament have advocated a ‘normative power’ perspective based on human rights values early on, leading to the inclusion of pertinent provisions in the EU Charter as well as in a number of directives addressing the rights of asylum seekers, refugees and migrants. This policy identity has, however, recurrently faced reluctance on the part of the Council. Member states have also not 123

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sought European solutions to the intake of economic migrants but have preferred to maintain their national schemes. In sum in the context of internal community-building, the process of European integration generates a functionalist emphasis on the strengthening of external borders that is typical to processes of state formation. Coupled with the politicization of immigration, the value added of EU policies for member states is perceived to lie more in measures to control undesired immigration than in forging a common policy based on human rights or economic freedoms. The recent crisis of the Common European Asylum System and the difficulties to agree on a common policy to attract ‘desired’ foreign workers document the limits of this one-sided concern with protecting the internal ‘Area of Freedom, Security and Justice’ from eventual external threats. While the historical analogy shows that the desire to demarcate the boundaries of the community is a normal step in processes of state formation, the process of European unification, in contrast to the territorial European states of the eighteenth and nineteenth centuries, occurs in the context of (more or less) consolidated liberal democracy. Also, this focus contrasts with the EU’s own foundations in economic freedom and more recent ambitions at normative leadership. It is therefore no surprise that the protectionist, ‘statist’ bias fails to satisfice normative and economic expectations to the emerging European identity—and points at the limits of political unification. Acknowledgements This research was supported by the National Center of Competence in Research nccr – on the move funded by the Swiss National Science Foundation.

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Sandra Lavenex is Professor of European and International Politics at the Department of Political Science and International Relations and the Global Studies Institute of the University of Geneva. She is also Visiting Professor at the College of Europe

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Comparative European Politics (2019) 17:585–602 https://doi.org/10.1057/s41295-019-00179-0 ORIGINAL ARTICLE

Direct and market governance paths for the creation of an EU political identity: cultural heritage policy Mark Thatcher1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract Cultural heritage has a dual nature: it is pursued for non-economic purposes; but it also  forms part of economic markets. Indeed, the European Commission has pursued two sets of policies in cultural heritage: activities to directly develop an EU identity, which parallel processes seen in nation building in Europe; governing cultural heritage markets. The article argues that  both can contribute to the creation of an EU policy identity and compares them through two subcases: EU creation of public symbols and labels; regulation of cross-border trade in artistic objects. It argues that although the first developed earlier and enjoyed an expansion of treaty powers, it has been marked by important limitations in terms of definitions of values and differentiation from other European identities. The second has seen a gradual development of specific EU values and definitions that are differentiated from those of other polities through cultural exceptions to general rules of EU markets or their adaptation. The conclusion points to a different path of political identity creation than that suggested by studies of cultural nationalism for nineteenth-century European nation states, one that is related to the EU as a market maker and shaper. Keywords Cultural heritage · Political identity · Culture · Cultural markets

Introduction Culture heritage  has both economic and non-economic features that are important for its role in building political identity. It forms part of markets for goods and services, but it is also  pursued for non-economic aims such as appreciating ’beauty’, understanding the past and expressing membership of a group.  Indeed,  the European Commission recognises ‘the dual nature of culture, being on the one hand an The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The correction to the chapter is available at 10.1007/978-3-031-17407-0_12 * Mark Thatcher [email protected]; [email protected] 1

Department of Political Science, Luiss University Rome, Rome, Italy

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economic good that offers important opportunities for the creation of wealth and employment, and, on the other, a vehicle of identities, values and meanings that mirror and shape our societies’ (Commission 2014a: paragraph 72). In line with this ‘dual nature’, the EU has pursued two sets of policies. One has explicitly sought to create an EU political identity through cultural heritage using means such as public labelling, symbols and cultural spending programmes. This has parallels with processes seen in nation state building in Europe. The second group has focused on the economic aspects of cultural heritage. It has included creating exceptions to general EU market principles, establishing rules for trade in cultural heritage goods and services and linking cultural heritage with economic development. But policies to govern markets are not neutral—they involve choices and the expression of aims and values. Such processes can contribute to creating political identities, even if this is not their explicit aim. They can be particularly important for cultural heritage, where the values linked to its dual nature can conflict. Cultural heritage thus offers an example of political identity building through two types of EU policies: explicit identity-creating strategies; indirect creation through market governance. The article examines these by looking at top-down policy identity creation by the European Commission, both generally and then in a subcase for each type of policy (EU public symbols and labels; EU rules governing cross-border trade in artistic objects). It argues that the EU has faced major limits in its ability to build a top-down EU policy identity in cultural heritage, but that there have been significant differences between the two sets of policies. The first has seen significant new Treaty competencies, as well as the expansion of activities. But, the subcase shows that it has been subject to strong constraints in terms of articulating specific and well-defined EU values that are differentiated from those of member states and other European bodies. The second set of policies has expanded later and with fewer Treaty changes. But it has seen significant articulation and definition of distinct values. To explain these differences, the article underlines not only the legal framework but also the differing ability of the Commission to overcome divisions among member states in pursuit of making and shaping markets. The findings suggest that the EU has greater capacity to construct a policy identity by creating market rules than through explicit identity-creating programmes. More broadly, they point to a different path for EU identity creation than that suggested by studies of cultural nationalism for nineteenth-century European nation states, one that is related to the EU as a builder and shaper of markets. The article begins by discussing links between cultural heritage and political identity before offering an overview of each set of policies and then analysis of the subcases.

Cultural heritage, EU cultural policy and political identity building Cultural heritage can be material, such as buildings, monuments or art, or immaterial, such as languages or customs. It does not simply exist but is created, notably by selecting and attaching meaning to certain objects or practices through processes Reprinted from the journal

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of ‘heritagisation’ (Smith 2006; Harrison 2013). David Lowenthal defines heritage as ‘the celebration of the past for present purposes’, but a past ‘in danger’ that therefore needs protection (Lowenthal 1998; cf. Wright 2009). Hence heritagisation can be highly political and particularly strong in times of crisis and institutional development. Indeed, a wide literature on ‘cultural nationalism’ shows that nationalists, including state actors, created much cultural heritage as part of strategies to establish national identities, often in the nineteenth century (Hutchinson 1987, 2013; Leersson 2006; Anderson 1983; Hobsbawm and Ranger 1983). They sought to create, support and sustain ‘imagined’ communities of groups that identify with ‘the nation’ through many means: ‘invented traditions’, symbols, myths, places of commemoration, ‘national styles of architecture’ or ‘national recreations’ (Smith 1999, esp. Chap. 4; Smith 2013; Billig 1995; Hobsbawm and Ranger 1983; Anderson 1983). In similar vein, studies on contemporary heritage underline that state actors produce an ‘authorised heritage discourse’ (an ‘official’ view of the past and its relevance for today) and use heritage to attract popular support for the nation (Smith 2006; Wright 1985; Hewison 1987). Such strategies are not confined to nation states: for example, the literature has analysed the creation of EU ‘political myths’, in both economic and non-economic domains (Della Sala 2010). Sometimes inspired by the literature on nationalism in Europe, studies have analysed EU cultural policies that directly promote an EU identity (e.g. Cram 2009; Shore 2000; Sassatelli 2002; Patel 2012; Calligaro 2013). They have argued about the effectiveness of the EU’s ‘unity in diversity’ strategy (discussed below), the degree of integration achieved and the extent to which EU institutions have followed a deliberate strategy of seeking legitimacy through cultural policy. Views range from a claim that European elites and institutions, especially the European Commission, have engaged in a strong centralising drive for EU integration (Shore 2000) to arguments that policy making is in fact highly fragmented with a dispersion of power to many actors (Calligaro 2013; Sassatelli 2009). Recent analyses of EU cultural policy have claimed that there has been a major shift towards promoting economic aims and see culture and economy as being in tension or indeed contradiction. Some have argued that the focus on the ‘knowledge economy’ may indeed represent an industrial policy strategy for culture (Littoz-Monnet 2015; Crawford Smith 2015) and that, it is ‘economic instrumentalism rather than identity-building that presently prevails’ (Schlesinger 2018: 2; see also Primorac et al. 2018). The studies on cultural nationalism, heritagisation and EU cultural policies underline the political nature of heritage and its functions in creating political identity. They show that policy makers, including in recent polities such as the EU, can engage in heritagisation. At the same time, the studies need and careful application when examining EU policy identity. Many studies of cultural nationalism are based on nation states, especially in the nineteenth century, whereas its development in the twenty-first century at the EU level may well differ. For its part, the literature on EU heritage frequently forms part of much wider debates on the existence and strength

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of a European cultural identity, European integration and the substantive content of the policies (e.g. Sassatelli 2009; MacNamera 2015; Calligaro 2013), whereas here the analysis concerns top-down political identity created through policy making. Of particular note for the EU as a ‘regulatory state’ centred on market creation, is that many studies treat identity building and market integration as separate or as conflicting alternatives (e.g. Schlesinger 2018; Primorac et al. 2018; Littoz-Monnet 2015; Crawford Smith 2015). Yet governing markets involves setting out values and aims, and hence, even if indirectly and without being an explicit objective, creating a policy identity; similar processes can be seen in other economic spheres such as trade negotiations or the role of ECB (see Duina and Smith 2019, and Jones 2019, this issue). The present article compares two sets of policies pursued by the European Commission, one of directly promoting a ‘European identity’, and then a second of governing cultural heritage markets. The first has parallels with the processes identified by the cultural nationalism literature. But the second group of policies can also create an EU political identity albeit indirectly as it is not one of their specified objectives. This is true even (or perhaps particularly), in cultural domains which have an explicit set of alternative values to those of competitive markets and economic benefits. The two sets of policies are undertaken primarily by the same DG within the European Commission and involve discourses that set out values and hence political identity. But they differ in terms of forms of action and the article explores their contrasting political dynamics and implications for EU policy identity construction. EU policy identity is defined as a coherent set of political values that are articulated and claimed to be fundamental, shared across the EU and distinctive with respect to other polities, including member states (see Saurugger and Thatcher 2019, this issue). Policy identity is studied through policy making, including policy aims, the policy process and also legislation and Treaty provisions which not only set a legal framework but also express values. Given space constraints, most attention is given to the European Commission, whose importance has been underlined by studies of cultural policy.1 An inductive approach of suggesting possible explanatory factors is followed since at present, there are few specific hypotheses concerning the comparison between direct and market-shaping process of EU identity construction. The article does not examine whether and why European integration has occurred nor whether a European cultural identity held by citizens has developed; these issues have been examined by other research. Finally, whilst much of the EU literature refers to ‘culture’, sometimes using it almost interchangeably with cultural heritage, the article is concerned with the latter as defined by the Commission (indeed, the definitions and examples that it provides are used as evidence about the EU’s policy identity).

1 Although other European organisations such as the European Parliament and Council of Europe are also influential—e.g. see Sassatelli (2009), Calligaro (2013), and Psychogiopoulou (2015).

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Directly promoting an EU identity through cultural heritage The ‘unity in diversity’ strategy The Commission’s dominant policy in cultural heritage during the 1970s, 1980s and 1990s was explicitly to create an EU identity through a sense of European consciousness. It is well defined by Calligaro as ‘actions consisting of the representation of the European project capable of arousing the citizens’ feelings of belonging to the EC’ (Calligaro 2013: 6). Heritage was valued as ‘a means of making this European identity visible and accessible throughout… the EU’ (Calligaro 2013: pp. 89–90; Sassatelli 2009). The central strategy was promoting ‘unity through diversity’—avoiding positing an EU identity as an alternative to other identities, especially national ones. The Treaty framework both provides the legal base for EU action and at the same time, expresses values.2 The Treaty of Rome gave no specific powers to the then EEC over culture. However, the Maastricht Treaty changed this position. It set out certain general aims and values. Its Preamble stated the objectives of its signatories as  ‘desiring to deepen the solidarity between their peoples whilst respecting their history, their culture and their traditions’, and then Article 2(p) as providing ‘a contribution… to the flowering of the cultures of the Member States’. It offered a nonexhaustive definition of cultural heritage, which seemed to be very separate from markets, notably through a reference to ‘non-commercial exchanges’ and greatly expanded the European Community’s remit of action, although subject to ‘subsidiarity’. Thus Article 128(2) allowed ‘action by the Community …aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the…: improvement of the knowledge and dissemination of the culture and history of the European peoples; conservation and safeguarding of cultural heritage of European significance; non-commercial cultural exchanges; artistic and literary creation, including in the audiovisual sector’. It sought to ‘mainstream’ culture as an objective across different policies and offered a general legal basis for ‘incentive measures’.3 Subsequent Treaties maintained the wide use of the term ‘cultural heritage’ and provided further powers. The Treaty of European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) underlined the importance of ‘unity in diversity’ as well as making an oblique reference to heritage in the sense of an endangered past. Thus, Article 3.3 of the TEU states that the EU ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’. The Maastricht Treaty provisions over the meaning of cultural heritage were repeated in similar terms,4 underlining the non-economic

2

For a legal overview, see Smith (2015). Albeit with constraints in terms of member state agreement and avoiding harmonisation—Articles 128(4) and 128(5). 4 Eg in the TFEU, Title XIII ‘Culture’ and Article 167, although it added “in particular in order to respect and to promote the diversity of its cultures”. 3

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features of cultural heritage as well as the complementary and non-rival relationship of EU actions with the cultural heritage of member states. Legislation was permitted for the achievement of these objectives.5 Thus since 1992, the Treaties have provided wider powers to EU institutions. Equally, they make reference to a series of powerful non-economic values that are usually regarded as fundamental to Western democracies. But in fact, even before having a legal foundation, the Commission had begun to promote culture, often in close cooperation with the European Parliament and operating in a discrete manner in order to avoid national opposition. Activities began in the 1970s, notably with the Declaration on European Identity  issued at the  Copenhagen Summit of member states of December 1973, and then grew in the 1980s and 1990s (see Calligaro 2013, especially Chap. 2; and Shore 2000). Within the Commission, from the mid1980s under Jacques Delors, ‘culture’ was recognised as an explicit responsibility and made part of a DG, initially that for Information and more recently usually the DG for Education (e.g. the present DG is for Education, Culture, Youth and Sport). The Commission has engaged in a wide range of activities from creating networks to offering education and supporting preservation of selected architectural heritage sites and digitisalisation of heritage objects and cinema films.6 After 2000, the diverse activities were brought together in broader programmes, the Culture 2000 programme and the ‘Cultural Programme’ for 2007–2013, followed by the ‘Creative Europe’ Programme for 2014–2020. The most important, long-lasting activities and representative activities for policies to directly promote an EU identity have been those of creating EU public symbols and labels. Subcase of policies to develop an EU identity: Creating EU public symbols and labels Policies to create EU public symbols and labels have been pursued in several guises. Analysing the EU’s discourse of ‘placing’ heritage in the wider and diverse context, Lähdesmäki (2016) identifies five forms or strategies: rewarding labels and awards to sites, particularising cities, emphasising historical monuments, creating new spaces and ‘iconizing European administrative buildings’. They began in earnest in the 1980s. Following the Fontainebleau summit of 1984 and then the Adonnino Report of 1985 which was entitled ‘A People’s Europe’ (Commission 1985), attempts were made to create EU symbols to aid citizen identification, such as an anthem (Beethoven’s Ode to Joy) and a flag. European Heritage Days were another initiative: on the same day throughout Europe, usually in September, historic buildings and cultural artefacts are made available for public viewing. This has been on-going since 1985 and was initiated by the Council of Europe, with the EU joining in 1999. In addition, there are now European Cultural Routes, run jointly with the Council of

5

Article 167(5), former 128 in the Maastricht Treaty. Europeana; for films, see http://ec.europa.eu/archives/information_society/avpolicy/reg/cinema/index _en.htm.

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Europe, which provide paths and pilgrim routes.7 A ‘European heritage label’ has been developed thanks to a Decision in 2011. It applies to heritage sites that are chosen because they ‘celebrate and symbolise European history, ideals and integration’; sites include Robert Schuman’s house or a museum for Alcide De Gasperi.8 EU Cultural Heritage prizes/Europa Nostra awards have also been established, to ‘celebrate excellence in cultural heritage work in Europe’. The selection of ‘European capitals of culture’ is perhaps the best-known project that involves labelling. In 1985, following an informal meeting of European ministers of Culture and in large measure at the initiative of the then Greek Culture Minister Melina Mercouri, certain cities were named as ‘European cities of culture’ (see Patel 2013a, b; Sassatelli 2009: Chaps. 3 and 4). Initially, the programme was highly inter-governmental, since the choice was decided by the Council of Ministers, but after Decisions in 1999 and then 2006 (EC 1999 and 2006), the EU dimension increased, with both national and EU-nominated actors participating.9 Member states can nominate cities and the final selection is made by the Council of Ministers. The criteria are divided into a ‘European dimension’, including ‘highlighting the richness of cultural diversity in Europe and bringing the common aspects of European cultures to the fore’ and the criteria of ‘City and citizens’, which relate to the participation and cultural and social development of the city (Article 4, EC 2006). The strategy of creating an EU identity through public symbols and labels has had some results. Symbols such as the EU flag may become part of ‘banal Europeanness’ as they are ‘taken for granted’ (Cram 2009, cf. Billig 1995). In terms of numbers, it is estimated that up to 20 million people take part in European heritage days, representing around 5% of the total population of the countries belonging to the Council.10 More than 50 capitals of culture have been named since 198511 and selection has been a significant element in strategies to develop and regenerate certain cities such as Glasgow (1990), Lille (2004) and Liverpool (2008) (cf. Patel 2013a, b). However, with respect to the top-down building of an EU policy identity (as distinct from other forms of identity creation, such as through citizen participation), the ‘unity in diversity’ strategy of public symbols and labels has suffered from important limitations. In terms of articulating certain values as fundamental, the claims made for EU symbols have relied on concepts such as ‘democracy’, a ‘common European heritage’, the ‘rule of law’ or ‘respect for human rights’ (cf. Shore 2000: Chap. 2). Thus, for instance, the Preamble to the TEU and TFEU states that signatories act ‘drawing inspiration from the cultural, religious and humanist inheritance

7

http://www.culture-routes.lu/php/fo_index.php?lng=en. For the list see http://ec.europa.eu/programmes/creative-europe/actions/heritage-label/discover_en.htm. 9 There are national selections, which involve panels of which 6 members are nationally designated and 7 are designated by EU institutions (two by European Parliament, Commission and Council of Ministers and one by the Committee of the Regions) and chaired by one of the EU-nominated members. 10 http://www.europ eanhe ritag edays .com/Home/Conte nt-page.aspx?id=33da6 73f-1180-4d50-ab55db80f6b13d15. Accessed 4 July 2015 and http://www.ecml.at/Portals/1/800_millions_en.pdf. 11 See http://ec.europa.eu/programmes/creative-europe/actions/capitals-culture_en.htm. 8

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of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’. But these terms are very abstract and not necessarily the preserve of the EU (Calligaro 2014). Within the EU, these values have faced competition from others, such as economic growth and utility, including in cultural heritage (Schlesinger 2018; Bruell 2013; see also below). In terms of a set of values shared across the EU, the meaning of ‘European heritage’ has largely been left undefined. There is no overarching EU legal definition of cultural heritage. The Maastricht Treaty suggested that the EU was to ‘contribute to the flowering of the cultures of the Member States, whilst respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore’ (s1). But it did not define ‘the shared heritage’ (in the singular) and instead put it side by side with diversity. The Treaties offer only a non-definitive indication of ‘cultural heritage’ that includes artistic creations, languages and historical knowledge. Instead, the Commission provides specific areas and examples, including architectural and archaeological heritage, artistic objects, traditional skills and crafts, and audiovisual work and immaterial heritage such as languages and traditions of food and wine (e.g. Commission 2014b, 2017). This is more of a list of rather diverse objects and practices than a coherent definition, making it difficult to find EU-wide values that can be communicated. Perhaps the greatest difficulty of the ‘unity in diversity’ strategy for EU identity building has been the lack of differentiation from other European identities (cf. Shore 2000). The European Commission has claimed that ‘there is no contradiction between national responsibilities and EU action: heritage is always both local and European’. (Commission 2014b: 3). Yet many symbols seem linked to Europe in general and/or member states rather than the EU in particular—hence their EU distinctiveness is difficult to discern. Several of the EU’s symbols and labels are presented as ‘European’ rather than ‘EU’ and belong to non-EU members as well as EU ones—e.g. the heritage days and capitals of culture. Indeed, several were initially created by the Council of Europe, not the EU which adopted them later. Equally, labels of European heritage are more likely to be associated with national or subnational identities than the EU. Inclusion of the many and varied traditions of member states as well as the local and regional level within a ‘European identity’ leads Calligaro to argue that the strategy should be seen as promoting Europeanness rather than a single European identity (Calligaro 2013; cf Lähdesmäki 2012, 2016). Several factors can be adduced to explain the limits faced by the Commission’s strategy of directly creating a political identity through symbols and labels. One may be limited legal powers, with EU action after 1992 being subject to subsidiarity. However, it is noteworthy that the Commission began policies well before any legal powers were given under the Treaty. Equally, those powers were greatly increased after 1992 and were stated in broad terms that could allow much interpretation and scope for Commission action. Another factor may be that the boundaries and aims of cultural heritage are not clearly stated. This is exemplified within the Commission by Culture being part of a package of responsibilities given to Commissioners—e.g. Education, Culture, Youth, Media and Sport, 1999–2004, Education, Training, Culture and Reprinted from the journal

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Multilingualism after 2004, or Education, Culture, Youth and Sport today. Whilst ambiguity and avoidance of explicit objectives may have aided ‘covert integration’ or ‘integration by stealth’, as the Commission pursued actions whose legal base was weak and then which might have aroused opposition (cf. Calligaro 2013: Chap. 2; Shore 2000), they reduced the strength of an EU policy identity. But perhaps the most important constraint has been the lack of a coalition of powerful supporters. Within the Commission, culture has not been a powerful directorate general. It has not enjoyed its own DG and has instead been combined with education, another domain in which the EU has few legal powers. Commissioners for Culture have rarely been drawn from large powerful member states.12 In contrast to other domains such as regulation of markets and general competition policy, the Court of Justice has played very little direct role, with few legal cases and rulings. Equally, culture ministers in the Council are frequently not the most powerful members of their national governments and also often have a combination of responsibilities, frequently including the media and/or education. Relations with member states and other European bodies have also limited the emergence of a specific EU identity. Labelling a building, artistic object or food ‘EU’ offers few advantages to actors within member states. It may meet strong opposition if it appears to conflict with other discourses and narratives that link to local, regional or national identities, or to claims that heritage was of ‘European’ importance (as distinct from being EU heritage). National governments have given promotion of an EU cultural heritage identity low priority. They have kept EU spending on specifically cultural heritage programmes very small (e.g. the 2007–2013 Cultural programme funded 130 projects in cultural heritage with c€40 m). They have also blocked some EU initiatives. Thus, for instance, they prevented the creation of ‘European rooms’ in national museums (Patel 2013b: 6); although just one example, it is illustrative of the limits on EU policy making. It has been difficult for the Commission to separate the EU from general European cultural heritage or appropriate the latter. This is illustrated by the role of the Council of Europe in some aspects of cultural policy such as European heritage days. Equally, the importance of attracting supporters in member states is shown by the most prominent and perhaps successful symbolic initiative, namely the Cities of Culture. The leaders of European cities have been participants in initiatives such as the selection of cities and given strong support. But it is noteworthy that the label is ‘European’ rather than ‘EU’, that achieving it has offered material advantages based on promoting local identity, and finally, that the emphasis within the programme has increasingly become the economic benefits of the programme (Sassatelli 2012), which offers an example of the second type of policy pursued, namely linking heritage with markets.

12

Viviane Reding from Luxembourg was the Commissioner responsible for Education, Culture, Youth, Media and Sport, 1999–2004, whilst Jan Figel was Slovakia was Commissioner for Education, Training, Culture and Multilingualism 2004–2009,12 succeeded by another Slovak 2009–2010 and then by Androulla Vassiliou from Cyprus 2010–2104. The present Commissioner for Education, Culture, Youth and Sport is Tibor Navracsics from Hungary.

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Governing cultural heritage and markets Limiting, linking and creating economic markets in cultural heritage The EU’s second set of policies concern the economic aspects of cultural heritage. Their foremost explicit aims have been to govern markets and contribute to economic growth rather than create an EU political identity which therefore arises indirectly through processes such as EU institutions defining aims and values and setting out priorities. Historically, cultural heritage policy was seen as normally operating outside markets and market mechanisms. Insofar as markets intruded, attention was focused on ‘l’exception culturelle’—the ways in which culture should be protected through exceptions to rules about competitive markets. One prominent example was the audiovisual sector, especially in international trade negotiations. Another was state aid rules, for which the Maastricht Treaty altered the law: it accepted as compatible with the internal market ‘aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Union to an extent that is contrary to the common interest’ (then 92(3)d, now Article 107(d) TFEU). Hence cultural heritage was seen as sufficiently valuable to be balanced against the usual losses to the ‘common interest’ from state aid. These provisions were clarified and widened (to include natural heritage) in 2014 (Commission 2014a). However, linkage of cultural heritage and markets grew, especially after the Lisbon Strategy of 2000, as part of debates concerning competitiveness, development and markets (Littoz-Monnet 2012). The Commission, and more specifically DG Education and Culture, began to switch justifications for EU action away from underlining the specificities of culture that required non-market policies towards a strategy of arguing that culture brought economic benefits and could be combined with markets. Thus, for instance, a Commission Communication in 2007 explicitly sought to ‘underline the value of culture, including heritage, for economic growth and the Lisbon strategy as well as international relations and dialogue (Commission 2007: 3). The 2014–2020 Creative Europe programme saw an even more marked turn towards economic objectives (Littoz-Monnet 2015; for highly critical views, see Schlesinger 2018; Bruell 2013). Its aims were to ‘strengthen competitiveness in the cultural and creative sectors, by strongly focussing on capacity building measures and support for transnational circulation of cultural works’ as well as safeguarding the EU’s ‘legal obligations regarding the safeguarding and promotion of cultural and linguistic diversity’. Key justifications also included ‘ensuring a more level playing field in the European cultural and creative sectors’ and wider economic growth as the ‘approach recognises the important contribution these sectors make to jobs and growth… they trigger spill-over in other sectors of the economy such as tourism and fuelling content for ICT’ (Commission 2011: 2). Equally, a 2014 Communication underlined the direct and indirect economic value of cultural heritage thanks to its impact on other sectors (Commission 2014b). The Commission linked heritage to the tourist industry—for instance, the 2006 Decision about Cultural Capitals included the need to develop ‘culture and tourism’, whilst Commission documents Reprinted from the journal

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underlined that heritage aided tourism which is one of Europe’s largest and growing sectors (Commission 2017). Spending became increasingly connected to other programmes that had wider aims, including economic development. Thus the Creative Europe programme was broad, with culture being a subprogramme, whilst cohesion policy now includes a cultural heritage element, seen with the European Regional Development Fund allocating almost €6B for different forms of culture (Commission 2017: 10). A case that illustrates the combination of the application of general market principles, the presence of both economic and non-economic aims and issues of defining and protecting cultural heritage is cross-border trade in artistic objects. It shows how EU policies that shape economic market can also indirectly contribute to an EU identity.

Subcase study of markets and heritage: regulation of cross-border trade in artistic objects The Treaty of Rome included an exception to free movement of goods for ‘the protection of national treasures possessing artistic historic or archaeological value’, although it also stated that ‘prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’ (Article 36). But the issue was not prominent and many countries passed or maintained existing legislation on art exports. However, with the removal of physical border controls and the internal market in the 1990s, plus the internationalisation of the art market due to electronic technology which facilitates cross-border sales (e.g. through electronic viewing and bidding) and the expansion of large internationalised auction houses, debates on creating EU regulation grew. Member states accepted the need for EU legislation but differed about its content and extent. ‘Art source’ or exporting countries such as Italy and Greece pressed for stronger restrictions than art acquisition or importing ones such as the Germany, Belgium, The Netherlands and most of all the UK (Viantro 1993). One issue concerned the length of the statute of limitations— i.e. how long after an object has been illegally exported under national law does it remain an illegal export—with source countries pressing for longer periods than acquisition ones. Another was the scope of any legislation—for instance, whether ecclesiastical objects were covered. A further question was the power of national courts. Finally, there were issues about restitution: countries were divided between civil law ones where sellers of stolen or illegally obtained goods acting in good faith can pass ‘good title’ and common law ones where this is very difficult, notably the UK (Viantro 1993). These issues concerned both the market within Europe and also exports outside the EU. Following debates and after having obtained agreement among member states, the EU passed two pieces of legislation in the early 1990s. Their provisions can be analysed to examine political identity creation.

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One was the 1992 Council Regulation on the Export of Cultural Goods, which established an export certification system (Peters 2016).13 Export certificates are issued by the country of origin but are valid throughout the whole of the EU. Hence a form of EU-wide but nationally based export system was created. In order to define the parameters of licensing, the legislation sets out categories for cultural goods, notably in terms of type (ranging from archaeological objects to books, maps, toy games, photographs and wallpaper) and age (mostly 50 or 100 years); it then applies minimum monetary values for different categories.14 However, a licence can be refused ‘where the cultural goods in question are covered by legislation protecting national treasures of artistic, historical or archaeological value in the Member State concerned’ (Article 2). The second piece of legislation was Council Directive on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State.15 It set up procedures for the return of objects unlawfully removed from the member state according to the national laws then in force. To do so, it defined ‘cultural objects’ (using the categories used in the 1992 Regulation on exports of cultural goods). It contained provisions that gave considerable place to national laws and decision makers. Thus legal action had to be undertaken by the member state rather than private individuals within a 1-year time limit from when the member state became aware of the location of the object and its possessor; the national court of the member state in which the object is located makes rulings about restitution, and decides compensation to the holder of the object; the requesting member state had to pay the sum unless it could show that the purchaser had not taken ‘due care and attention’. Under EU rules member states were therefore highly dependent on others for policing their domestic protections on exports (Peters 2016). The 1993 Directive was assessed by a series of reports by the Commission which pointed out its limitations (Commission of the European Communities 2000, 2005, 2009), followed by the establishment of a working group that included representatives of member states. Thereafter, a Commission review and public consultation took place in 2011 that looked at alternative measures, including adopting the 1970 UNESCO convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Górka 2016). The Commission decided to develop the EU’s existing framework, embodied in a new Directive in 2014 (2014/60/EU). The 2014 Directive went considerably further than the UNESCO convention and instead drew on a 1995 convention on stolen or illegally exported cultural objects drawn up by the International Institute for the Unification of Private Law (UNIDROIT), an independent organisation based in Rome (Schneider 2016). In particular, the 2014 Directive broadened the scope of the objects covered to ‘the ‘national treasures possessing artistic, historic or archaeological value’

13 It was codified by Regulation 116/2009, which also made provisions directly applicable but their content was largely left unchanged. 14 The Annex to the Directive establishes fourteen categories of objects which qualify as national treasures from archaeological ones to pictures, sculptures and archives. 15 Directive 93/7/EEC- OJ L74/74.

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under national legislation or administrative procedures within the meaning of Article 36 TFEU’ (Article 2), removing category and financial limits. It also increased time limits to request return (to 3 years) and set up an inter-member state information system. Importantly, it reversed the burden of proof so that acquirers now have to show good faith to be entitled to compensation. Whilst debates and decisions on the regulation of cross-border art markets concerned economic exchanges, they also involved features that relate to policy identity, notably definitions, values and aims. Certain cultural values have been articulated as taking priority over normal EU market rules. In particular, returning illegally exported cultural property has been given great significance relative to other values such as the free movement and private ownership of goods. Thus the 1993 Directive boldly stated that its objective was ‘to ensure the physical return of the cultural objects to the Member State from whose territory those objects have been unlawfully removed… irrespective of the property rights applying to such objects’ (Preamble, paragraph 8). Equally, in analysing the need for further changes after 2000, the Commission underlined the combination of protection of ‘national treasures’ with economic aims; for instance, it argued that the directive had ‘the aim of reconciling the operation of the internal market with a guarantee for the Member States that their cultural objects with the status of national treasures….will be protected’ (Commission 2009: 3). Although national laws specify what is categorised as a ‘national treasure’ and of course vary across member states, a degree of EU-wide definition has been offered. Thus, for instance, categories were established in the 1997 Directive and there have been discussions of a move towards an EU-wide definition of objects to be protected (European Parliament 2013). Although the EU incorporated national definitions of ‘treasures’, the legislation often differs considerably from national frameworks (for instance, in giving legal force to overseas definitions of treasures or through its provisions on ‘good faith’ purchasers) that point to a distinct set of EU values. Hence the EU categorisation has gradually become separate from national definitions and rules, offering a degree of differentiation from member states. Equally, EU legislation for cultural objects involves adaptation of general rules and values on free movement, the rights of private property and restrictions on state action. The requirement on member states to enforce the differing legislation of other member states is particularly noteworthy. Thus internally, EU rules on the export of national treasures embody a distinctive set of values. Externally, EU restrictions on art exports stand in contrast to those of other polities, especially the USA. John Merryman (1986) distinguished between ‘nationalist’ and ‘internationalist’ approaches to trade in cultural objects—the USA is close to the latter whereas the EU is closer to the former. Moreover, the EU did not just adopt the 1970 UNESCO convention but developed its own rules which are sharper and more far-reaching. Policies for cross-border trade in art exports thus have several features that are exceptions to or adaptations of strong and well-specified market rules, including those of the EU internal market, such as protection of private property or free movement of goods. Justifying and articulating those provisions has aided the development of the  EU’s policy identity—notably setting out explicit aims and values 139

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through definitions and rules that apply across the EU and are distinctive with respect to those of member states and other polities. Being able to craft specific rules for cultural heritage can be linked to several factors. One is the legal framework. Certainly Article 36 of the Treaty of Rome provided an important exception to usual market rules. Yet the Article had existed since 1958 without any action being taken. What changed from the 1990s onwards was the context-especially the single market in the 1990s and the Commission’s strategy of combining non-economic aims, notably such as preventing the export of prized national objects, with economic ones such as creating a EU-wide art market that had rules about ownership. The Commission was able to point to the need for improving the smooth running of the single market, in arguing for the original 1993 directive and for the 2014 revision (Commission 2013b: 7). Crafting rules for cultural heritage in the single market required specificity—for instance, in legal definitions and in discussion and decisions about exceptions to general market rules. A further factor concerns support from member states. EU elements (e.g. protecting cultural heritage over the property rights of an innocent acquirer) are combined with national elements such as nationally defined treasures or the initiative for action lying with member states. The coupling has aided the Commission to assemble a coalition of supporters, notably public bodies in member states. Commission documents made repeated references to the desire of member states to increase the efficacy of the EU-wide system. Thus, for instance, in revising the 1993 Directive, it pointed to ‘the repeated demand made by representatives of the Member States for effective arrangements for the return of cultural objects classified as national treasures’ (Commission 2013b: 9), as well as the group of national experts set up under the open method of coordination who looked at how to reform the system (e.g. Commission 2005: 6–7; Commission 2009: 5–6; Commission 2013a: 5–6, 2013b). Indeed, the Commission enjoyed the support of national experts, national authorities for culture, national governments such as Germany, and also the European Parliament, for strengthening provisions (Górka 2016; Peters 2016). It is noteworthy that the 2013 Consultation revealed that a majority of public organisations supported change, whereas only a minority of private ones did (cf. Commission 2013b: 4; Górka 2016). The advantages of creating and shaping the market for art exports combined with important national elements led member states to find compromises between art exporting and art importing countries and also civil and common law ones.

Conclusion: the EU’s path to political identity in EU cultural heritage policy The EU has recognised the dual character of culture and its importance for political identity. Its role in cultural heritage has indeed expanded since the 1970s. But, important limitations on creating an EU policy identity can be seen. They are particularly evident in policies explicitly aimed at creating an EU political identity. Following the criteria set out in the Introductory essay (Saurugger and Reprinted from the journal

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Thatcher 2019, this issue), articulation of specifically EU values as fundamental and shared across the EU has been weak, as has differentiation from the values of other polities, notably member states or Europe as a whole. The EU’s identity in this field has been an attempt to ‘piggyback’ on different national and subnational identities as well as initiatives that are Europe-wide but not confined to the EU. Whilst policies that link cultural heritage and markets have also faced constraints, notably the need to adopt diverse national definitions and tensions about the relationship between cultural heritage and markets, they have been stronger in terms of top-down creation of an EU policy identity. This is especially visible in terms of exceptions to, or adaptations of, general rules about markets. Thus definitions of key matters such as what constitutes cultural heritage and why it is treated differently from many other sectors, are more specific and concrete compared with the abstract values and concepts used in the TEU/TFEU about cultural heritage or the lack of a list in the Commission’s activities to directly promote cultural heritage. Market rules offer definitions that apply across the whole of the EU and have greater differentiation from those used by member states or other polities such as the US. Seeking to combine markets and protection of the specificities of cultural heritage—its ‘dual nature’—has led to greater articulation of distinctive values and hence a stronger EU policy identity. In terms of explanatory factors for the patterns found, institutional factors such as the weaknesses of DG Education and Culture have been longstanding and apply to both subcases. The legal Treaty basis for EU policy making in cultural heritage has grown greatly since 1992. However, linkage to the single market has been important, as creating and shaping market rules has involved defining terms, as well as debating and deciding how to balance or combine the dual nature of cultural heritage. Equally, the analysis suggests that a key factor in explaining the differences between the two subcases relates to the Commission’s ability to build broad coalitions, especially with member states and national actors. Further research is needed to investigate the explanatory factors and to compare the domain with others which have a ‘dual nature’ such as education, welfare or justice. Cultural heritage is an important part of political identity. But it may also shed light on other empirical and theoretical issues. In particular, it may aid in analysing the EU’s path to a political identity. The literature on cultural nationalism has underlined the importance of heritage and related domains such as education, in nineteenth-century nation building, by creating ‘imagined communities’ through a host of means such as symbols, commemorations and myths. The study here suggests that EU is following a different trajectory, in which its political identity is strongest when linked to market making. If the conclusions from cultural heritage apply to other domains, they point to the constraints on policies to directly create an EU political identity, notably when using a ‘unity in diversity strategy’. In contrast, the governance of markets may produce greater effects on policy identity, including through establishing exceptions to rules about competition, private ownership and free movement. However, market making and shaping are often technical. They lack the popular appeal or participation of symbols and labels such as, for instance, heritage days. Perhaps herein lies a paradox for EU political identity construction: it is limited, even for policies that aim at 141

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directly creating an EU heritage, which require relatively limited expenditure and have seen enhanced legal competencies. It is stronger in market making and shaping. But for citizens such activities are often difficult to understand and identify with. Market governance offers the EU a path to a distinctive set of articulated values, but its processes and content may have limited popular appeal. Acknowledgements I would like to thank discussants of earlier versions of this paper at workshops at the Centre d’Etudes Européennes, Sciences Po and SAIS, John Hopkins University Bologna, including Sophie Jacquot and Pauline Ravinet for their support and also two reviewers of the present article.

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Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London School of Economics.

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Comparative European Politics (2019) 17:603–618 https://doi.org/10.1057/s41295-019-00176-3 ORIGINAL ARTICLE

Understanding the identity of a policy field: the European Commission and liberal modernization in the domain of labour and social policy Georg Menz1 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract In congruence with the theme of this special issue, this paper clarifies the contribution the identitarian turn in European Union (EU) studies can make to the field. The paper explores the policy domain identity of the European Union social and labour market policy. It argues that over time, this identity has shifted considerably. Starting in the 1990s, when the Delorsian re-regulatory policy orientation slowly dissipated in favour of a more market-oriented approach in line with the so-called pink turn of centrist Social Democratic parties, the identity has undergone a number of changes. In the 2000s, the predominant identity was clearly liberal in nature, shaped by the Lisbon Agenda and a faith in the welfare-creating powers of deregulated market capitalism. By the 2010s, there was clear pushback against this image, and throughout this decade, the policy domain identity has lingered and struggled to assume a more concrete orientation. This slightly muddled and unfocused identity is in part to blame for the period of stagnation in further strides, whilst criticism of Commission overreach and intra-EU immigration have created a momentum against additional activity in this field. Keywords European Union labour market and social policy · Constructivism · Identitarian turn · Identity · Liberal modernization

Past scholarly efforts have paid scant attention to the identity of a given policy domain at the European Union (EU) level. A prevailing assumption in European studies has been that policy output is shaped by the interplay of interests and institutions. Thus, much of the scholarly debate on European integration in the 1990s focused on the relative influence of the member states versus the European institutions in determining the outcome of European-level decision-making (Moravcsik

* Georg Menz [email protected] 1

Old Dominion University, Norfolk, USA

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1993; Hix 1994). But this debate, which has now reached somewhat of a stalemate, had little to offer regarding the dominant identity of individual policy fields. In line with the introduction to this special issue, we will explore ‘how and why … EU …institutions [have] created an EU political identity and … the content of that identity’ (p. 2). The identity itself and its construction will be studied ‘through the policymaking process’. What does the identity of any given policy field look like and what shapes it? How is identity constituted and what factors conspire to affect change? This article examines the identity of the policy domain of labour market and social policy at the EU level. It argues that the identity of a given policy domain is shaped by the Commission which looks to the member states for inspiration and ideational cues. Thus, we are ‘looking at the construction of the EU’s political identity by one group of collective elite actors, namely EU organizations in policy-making’ (p. 3). The Commission endeavours to create a palatable identity associated with such policy domain that makes future policy initiatives in line with such brand more palatable to member states and thus politically easier to implement. This identity is constructed by the Commission ‘in.. [its] activities of policy making’ (p. 5) and thus can be analysed by studying such activities accordingly. In crafting identity, the Commission needs to pay heed to prevailing and popular ideological cues, terms and expressions, narratives and ideas. It is much easier to forge an identity based on ideational elements that are circulating among member states elites than to attempt to create it de novo. The introduction to this special issue proposes a definition of such identity that articulates core norms in a carefully curated fashion (p. 7). Policy domain identity is thus actively shaped for strategic reasons and with a view to facilitate policymaking. In the 1990s, the European Commission skilfully crafted a brand associated with labour and social market policy that coalesced around Social Democratic ideas of re-regulation, worker rights and equality in the work place. However, in the following decade, such identity appeared out of tune with prevailing policy ideas among member states. The new identity floated thus reflected concerns over inclusion into the labour market, active labour market policy, and liberal market-friendly policy initiatives. The identity of this policy domain was one of liberal modernization. In the 2010s, it became difficult to craft an identity that was both encompassing enough to convey the sense to all of the 28 member states that national ideas were reflected, yet also cohesive enough to facilitate policymaking. Empirically, this article draws on policy output created in this field since the mid-1990s. It is organized into three sections. In the first segment, we shall explore the ‘identitarian’ turn in EU studies, clarifying the argument put forward here and outlining how it fits into the theme of this special issue. Secondly, we will examine the chief argument submitted here against the available empirical evidence, according to which the Commission develops and deploys an identity for certain core policy domains for strategic purposes. Thirdly, we discuss how the long-term effect of EU eastward enlargement, Brexit, and the increasing institutional diversity of European labour markets will likely deflate EU activity in this domain in years to come, because any coherent identity will be difficult to design and uphold. A brief conclusion summarizes this article.

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The identitarian turn in EU studies Past contributions to the scholarly debate on European integration in the vein of constructivism emphasized the ideational and normative underpinning behind key decisions by individual member states, thus questioning the validity of purely rationalist approaches (Jabko 1999; Parsons 2002). Ideas and ‘soft’ factors, such as values and norms, matter a great deal in reaching decisions that cannot be accounted for in purely rationalist terms (Goldstein and Keohane 1993; Evangelista 1999). They provide the ‘glue’ for conceiving, justifying, and implementing policy that is otherwise very hard to find approval for. Ideas can thus be used in an instrumental fashion to secure political acceptance (Blyth 2002; Abdelal et al. 2015). They serve as inspiration for particular policy directions taken, for example the monetarist turn that was enshrined in the European context by attaching certain preconditions to membership in the Eurozone (McNamara 1998). This ideational turn in international relations has focused on major turning points, but has never been fully exploited to account for more gradual and long-term oriented changes in identity to a policy field. This is precisely the direction this article and the special issue are pointing towards. Whilst past contributions to the scholarly debate focused on the effect European integration had on the identity formation of Europeans (Fliegstein 2008; Checkel and Katzenstein 2009) and how employees of the European institutions found their identity to be transformed (Hooghe 2005), no previous scholarship has addressed the identity of policy domains at the European level themselves. The closest existing contribution is the concept of ‘normative power Europe’, developed by Ian Manners (2002) who argued that the EU radiates influence and ‘soft power’ by virtue of what it is, rather than what it does. But empirically he clearly focused on the impact of EU influence beyond Europe. Exploring the ways in which identity of a policy domain matters is thus a genuinely novel and exciting enterprise, which is precisely what the special issue this article forms part of it wishes to address. The claim I wish to submit is that identity formation of a policy field can be pursued in a strategic fashion to help secure political acquiescence. The European Commission is a skilful political operator that creates a certain positive identity associated with a given policy field that renders a given ideological turn both more attractive and palatable. In doing so, however, it needs to display acumen and awareness of prevailing concepts, ideas and ideological currents that predominate at the member state level. Such strategic considerations are thus akin to some of those employed by policy entrepreneurs, though in the voluminous literature on this concept (inter alia Baumgartner and Jones 1993; Kingdon 1995) no consideration is given to considerations of identity formation regarding policy outputs. Crafting a new identity that departs from some predominant national concepts in a limited number of member states is viable, but creating a policy identity out of touch with influential ideational currents in the majority of member states defeats the purpose of the whole enterprise. Such image woefully detached from the dominant zeitgeist will not only not aid in the smooth advance of fresh policy initiatives, but may, in fact, act as an impediment. The 147

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careful design of an identity of a policy domain can thus be deployed as a strategic tool to goad along member states into a direction they may be inclined towards, but hesitate to embrace fully. One constructivist tenet is the use of language and discourse (Schmidt 2008) in justifying and thus rendering more palatable policy reform. My argument focuses less on language per se and much more on the image created surrounding a certain policy domain, though there is also an instrumental element about this exercise. The Commission enjoys informational advantages flowing from a bird’s eye perspective. It can thus create an overarching theme as the core tenet to a policy identity, but it needs to be cognizant of member state positions and can cajole and shape but not impose an identity on a policy field. The policy entrepreneurship literature similarly recognized that good and successful entrepreneurs identify political inclinations and widely appealing policy positions that have previously been neglected and capitalize on them (Mintrom and Norman 2009), but they do not operate by pure brute force. It is beyond the scope of this paper to examine whether the core identity of a given political institution might affect policy output in ways that reflect a certain prism on the understanding of the policy domain this institution is tasked with regulating. Instead, the task is to explore the identity of policy output, that is to say, the contours of a given policy domain. I conceptualize policy domain identity as a strategic tool that can be shaped and deployed by political actors with a view to facilitate policymaking and lend a sense of direction and coherence to a given direction in policy change. We are interested here in the Commission as the principal actor and the member states as recipient audience. Identity is a policy tool used for strategic purposes, but it also offers a coherent conceptual core that is meant to inspire and allow policy actors to identify with. To use a recent fashionable term, an identity can be interpreted by the target audience as having spawned a ‘narrative’ that can bring political actors together, unite them for a common purpose, and help lend meaning to a policy agenda. For reasons of space constraints, I will also refrain from commenting on the identity of the EU in general during different periods. Methodologically, correctly making out policy identities of policy domains is not without its challenges. Attempts at reading off this identity from policy output are not a straightforward exercise. There is a lot of ‘noise’. Conflicting signals might well frustrate attempts at discerning patterns in the policy output generated. Yet careful empirically driven deductive research can unearth the identity of a policy domain that a dominant institution wishes to craft and project. By forensically examining policy output and the public-facing image of policy output, the identity of a policy domain can be re-constructed. This is the exercise this article undertakes. In so doing, it wishes to fill a niche in the EU studies literature and encourage future scholarship on the identity of policy domains and help shape our understanding of strategic tools EU institutions deploy. Governmental and quasi-governmental institutions cannot simply impose new policy styles at will. They will attempt to create favourable images of policy fields in which new initiatives are planned to help facilitate new policy directions. However, there are also limits and impasses to such strategy. It may at certain stages prove difficult or even impossible to generate identities that are appealing enough. Alternatively, the positions of member states might be so disparate as to render any attempt at cohesive policy domain identity flawed. Reprinted from the journal

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The strategic creation and promulgation of policy domain identities should thus be regarded as merely one strategic tool, but it is by no means a panacea, nor can it be detached from historical contingencies that may well impede or even arrest altogether such strategy.

Advancing labour and social policy via policy domain identity: the 1990s The European Commission emerged from the decade of the 1980s with a somewhat mixed track record in labour market and social policy. The conservative British government had consistently blocked major new initiatives. The Commission had put no real effort into crafting a policy image, assuming that the inherent appeal of new initiatives that followed on from the 1970s strides in health and safety at work would suffice to sway the member states. That was not the case in practice (Geyer 2000). British PM Margaret Thatcher expressed concern over excessive and statist topdown re-regulation of the British labour market via the European backdoor, essentially leading to a reversal of the labour market deregulation her government was implementing during the 1980s. The fundamentally liberal nature of the Maastricht Treaty marked a major departure from the more statist approach to policymaking and organized capitalist model the EU appeared to embrace. Jacques Delors, who took over as President of the Commission in 1985, famously posited that ‘you cannot fall in love with a market’. European citizens, he feared, would reject a technocratic and seemingly coldhearted project that might promise new jobs and economic opportunities, as outlined in the Cecchini report, but would be hard to embrace viscerally. Also, Delors was well aware that the deregulatory impact of the Maastricht Treaty would lead to economic upheaval, dislocation and job losses. His vision of a Social Europe was to complement and buffer the more liberal elements of the Single Market created in Maastricht. With the benefit of hindsight, the degree of ‘positive regulation’ (Scharpf 1997) was nowhere near as developed as the deregulatory or ‘negative’ effect of closer European integration. Yet Delors was hopeful that a new momentum of Social Democratic re-regulation of European labour markets could be achieved. This inspired great expectations among some on the Left, which entailed a northern European-style neocorporatist-inspired emulation of Social Democratic labour market policy for the whole of Europe. Such hopes went largely unfulfilled (Falkner 1998). ‘Social Europe’ proved somewhat of a mirage (Crespy and Menz 2015). The European Commission was complemented by an Economic and Social Council from the early 1990s onwards and was required to consult (but could ultimately disregard) the European-level umbrella associations of both trade unions and the employer associations. Whilst neocorporatist-inspired in appearance, the consultation was and is not legally binding and thus the input role that the social partners could provide was ‘neovoluntarist’ (Streeck 1995). In no way did it replicate in substance the much more powerful role played by these organizations in northern and central continental Europe. Throughout this era, the Commission embraced a Social Democratic reregulatory identity for its social policy. 149

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An erstwhile member of the socialist French government of Francois Mitterrand, Delors, correctly gauged the prevailing sentiments among continental European governments that were keen to be assuaged by an identity that stressed a social component to complement the more liberal elements of the Maastricht Treaty. Such evidence could then be used to address domestic anxieties regarding an excessively radical departure from the statist ‘embedded liberal’ models of organized capitalism in Europe. Crafting an image of a new attempt at centre-left coloured re-regulation of labour markets seemed in tune with the somewhat uneven embrace of economic liberalism in Germany, France and Italy. It seemed evident that such policy identity would be hard to make palatable to the Britons and attempting to do so might be a terminally flawed attempt at squaring the circle. The result was the Social Protocol added to the Maastricht Treaty, which bestowed the competence on the European Commission to set directives concerning ‘working conditions, information and consultation of workers, equality between men and women with regard to labour market opportunities and treatment at work’ (Falkner 1996, p. 3). It also introduced qualified majority voting to a more extensive array of issues. Art.2 guaranteed the British opt-out. The Social Protocol was readily embraced throughout continental Europe and seemed finely attuned to assuage concerns about an excessively radical departure from the more consensual and organized varieties of capitalism. It did so in two ways: it strengthened the consultation of employer associations and trade unions, committing itself to ‘promoting the consultation of management and labour at Community level and […] facilitate[ing] their dialogue by ensuring balanced support for the parties’ (Art. 3). At the same time, it committed the Commission to an image of social protection and support for worker rights. The policy domain identity created is reflected very well in Art. 1: ‘…the promotion of employment, improved living and working conditions, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion’. The Commission thus skilfully crafted an image in line with those countries wishing to elevate levels of social protection and others accepting to go along with this mission (Lange 1993). Predictably, the British government did not sign up to this protocol and to address concerns from domestic constituents, British PM John Major successfully pushed for reducing its status to a legally non-binding declaration of intent. This did not take away from its symbolic significance, however. Tellingly, his Labour successor in office Tony Blair reversed the previous stance and committed to the Social Protocol in 1997. The new policy identity thus created helped produce momentum that led to a flurry of social policy directives during the 1990s. The Commission generated and found approval for directives establishing the new consultative bodies named European Works Councils (94/45/EC), equal rights for part-time employees (97/81/EC) and worker protection for young employees (94/33/EC), limiting the working week to 48 h on average (2003/88/EC; originally 93/104/EC) and setting the parameters of regulation for transnationally posted workers (96/71/EC) (Geyer 2000). The ideological conflict the Commission faced regarding this policy field is plain: social and labour market regulation was often hard to square with and occasionally Reprinted from the journal

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even contradicted the liberal spirit of Maastricht and the revival of the Single Market in 1993. A very practical problem that we will return to later is the substantial level of diversity in Europe’s welfare systems, labour market regulation levels, relative power of unions and employers, and levels of social and public spending (Hoepner and Schaefer 2012). Even prior to eastward enlargement it was clear that the much more economically homogeneous European Economic Community of the 1950s and 1960s had long since faded away. There were major institutional and ideological cleavages between the northern and Mediterranean countries and between the liberal and the Social Democratic statist ideological vantage points. Social policy could thus be prescriptive, but could not be either redistributive or entail granular detail. There was and is no political appetite for substantially increasing the size of the EU budget to permit major redistribution or even construct some form of EU-level quasi-welfare state. It was thus difficult to walk the tightrope between satisfying those seeking Eurocorporatist Social Democratic re-regulation on the one hand and on the other alleviating concerns among economic liberals and the political Right regarding excessive statist re-regulation of labour markets. Even so, the Commission crafted a policy domain image of a forward-looking light touch re-regulation that addressed the potentially more contentious aspects of the single market, for example in the case of posted workers (Menz 2003). Employees seconded abroad temporarily to work on a project for their employer were guaranteed all statutory working conditions in the country of destination and at least minimum local wages, assuming these were statutory in character. The Commission also proceeded with policy initiatives that embraced European-level Social Democratic regulation modelled on Scandinavian and Germanic lines, such as the European Works Council directive. This new institution was an information and consultation body that could be implemented in European companies with at least 1000 employees in total and a minimum of 150 employees in a second country (Geyer 2000). This was meant to act as an inspiration for a generally more neocorporatist policy style. Egalitarian policy initiatives such as non-discrimination against younger and part-time workers were well received by those favouring the political values of the modern Left, without being stringent enough to offend or alienate those in favour of labour market deregulation.

Policy domain identity in the 2000s: the Lisbon Agenda Around the turn of the twenty-first century, the last vestiges of Delorsian aspirations had dissipated. The key turning point was the 2000 Lisbon Agenda. A Schumpeterian inspired document that was meant to inspire a fresh line of thinking regarding socio-economic policy, the agenda famously established a 2010 deadline for rendering Europe the most competitive knowledge-based economy. As part of this agenda, the focus of labour and social market policy changed considerably. The Prodi Commission (1999–2004) embraced a new identity for social and labour market policy, focussing on market-driven, deregulatory and enabling core that focused more on ‘workfarism’ and creating economic growth and thus job creation, rather than generous welfare provision. It also abandoned the ambition to implement binding directives in this domain. With that change in formal procedure came the abandonment 151

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of statist or neocorporatist policy style, followed over time by a shift into a more liberal direction in substantive terms. The Lisbon Agenda defined as its aim to render the EU ‘the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’. It specified achieving an employment rate of 70% (60% of women), investing 3% of GDP into research and development and encouraging entrepreneurship (EURActiv 2012). In many ways, this new image of the policy domain reflected the ideological repositioning of European Social Democratic governments, whether in the case of Britain’s New Labour, Germany’s Neue Mitte, the Dutch shift to the centre under Prime Minister Wim Kok or Lionel Jospin’s centrist Socialist government in France (Callaghan 2000). The watchword of the decade was ‘employability’. Redefining the key project of the welfare state as being enabling in nature, as outlined in detail in the joint Schroeder-Blair paper, the Lisbon Agenda reflected this new centrist shift the paper posits: ‘The promotion of social justice was sometimes confused with the imposition of equality of outcome. The result was a neglect of the importance of rewarding effort and responsibility, and the association of social democracy with conformity and mediocrity rather than the celebration of creativity, diversity and excellence’ (Schröder and Blair 1998, p. 3). The general goal was to prod and cajole employees back into the labour market, rather than subsidize extensive bouts of unemployment or underemployment. There is some debate as to whether this model of ‘workfarism’ was more strongly inspired by Swedish-style welfarism or by the more punitive US approach as shaped by the Clinton welfare state reforms of the 1990s (Daguerre 2007). In either event, this embrace of an ‘enabling’ state and the abandonment of passive redistribution as the guiding principle of welfare state policy captured the zeitgeist of the early 2000s perfectly. The new policy identity can be described as focusing on emphasizing labour market integration and inclusion, retraining and reskilling for the unemployed, reducing impediments for younger, elderly and female employees and thus raising employment and output levels. With the change in ideological inclination came a modification to the policymaking mode as well. Progress on social policy had been painfully slow and modest throughout the 1980s and 1990s due to the reservations of the British government during the reign of the Conservative Party. The Commission was well aware that the impending eastward enlargement would further complicate the prospect of agreeing on binding directives in this domain. The introduction of a less top-heavy policy instrument, the so-called open method of coordination, was thus not least owing to the frustrations over the experiences of the preceding two decades. Rather than attempting to devise mutually acceptable draft directives, the new policy style consisted of formulating fairly broad policy guidelines, but leaving the exact details of implementation up to individual national governments by way of so-called national action plans (Borras and Jacobson 2007; Heidenreich and Zeitlin 2009). The overall guidelines, again in line with the Lisbon Agenda, were meant to redress Europe’s lack of competitiveness and create more dynamic labour markets: investment in networks and knowledge, strengthening competitiveness and rekindling industrial policy efforts in services and environmental technology and increasing labour market Reprinted from the journal

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participation among older employees (EURActiv 2012). The success of this strategy was somewhat uneven. The 2004 Kok report was in parts quite strongly critical, and the overall quantitative targets in terms of labour market participation were not met. During the Barroso era (2004–2014), the Commission wished to adopt a new identity for this policy field, best described as ‘liberal modernization’. Notwithstanding the strongly critical tone of the Kok report, no change in direction was pursued. The shift to an enabling role, a guiding, but firm hand exercised by the Commission and the identity of liberal modernization was undoubtedly owing to the liberal zeitgeist of the early 2000s. The claim that Europe was suffering from sclerosis, low growth, excessively regulated labour markets and real entry barriers for younger employees and less so women, commanded much attention and influenced policymakers across Europe quite considerably. Twelve out of 15 governments in the EU of the late 1990s were dominated by the Social Democrats, but the ideological core of European Social Democracy had shifted considerably towards a more economically liberal direction (Callaghan 2000), perhaps best embodied by Britain’s New Labour and Germany’s Neue Mitte. Lacklustre economic growth seemed to only exacerbate the structural problems of continental rigidity, and there was a lot of jealousy in the superficially more fluid and better performing labour markets of the UK and the USA in the early 2000s. Thus, for example, Italy ceased to record any economic growth from 1999 onwards, whilst the US was achieving nearly 5% throughout the 1990s and into the 2000s (economic data from tradingeconomics.com 2017). However, any governmental attempt to stimulate innovation, improve educational standards of achievement and raise economic opportunity readily encounters the well-documented difficulties inherent in the state incubating economic dynamism. No matter how light the touch may be, the ultimate outcome of creative destruction Schumpeter chronicled was the shift towards a planned economy. With the abandonment of a tougher, tighter and more top-down policy approach, the other unsurprising result was the often robust resistance that national governments encountered in seeking to implement liberal policy reforms. With the EU as a useful scapegoat or, alternatively, the prospect of membership in the Eurozone a tempting ‘carrot’, it had been politically easier to foist often punitive cuts to public and social spending and in particular pensions upon the electorate (Sbragia 2001). The national action plans that were part of the open method of coordination, by contrast, were only indirectly related to the EU, and because of the anticipated resistance to cutbacks to social spending or changes to labour rights, governments had an incentive to tread carefully and avoid major change. The image of labour and social identity created during this decade was perfectly attuned to the centrist shift of many ostensibly Social Democratically governed European governments and their policy priorities. In that sense, enabling national governments to deliver on jointly agreed quantitative targets regarding labour market performance whilst bestowing an identity of modern, enabling and activating state activity on this policy domain helped advance the political agenda during this decade. Whilst this exercise was certainly successful in terms of advancing labour and social market policy and overcoming internal opposition, one might quibble with the efficacy of the measures carried out themselves. The stated goal of the Lisbon 153

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Agenda, namely to render Europe ‘the most dynamic and leading knowledge-based economy in the world by 2010’ (EURActiv 2012), was clearly not reached, even well before the onset of the Global Economic Crisis of 2008. The quantitative targets regarding raising labour market participation, not least for women and elderly workers, were equally not met. The policy image of liberal modernization helped usher in certain reforms at the national level, but reforms in others were more piecemeal. The annual targets to which member states committed constituted legally nonbinding ‘soft law’ indicators only, and it thus proved possible to evade far-reaching reforms altogether. ‘Naming and shaming’ as a strategy clearly did no accomplish much, either, in the face of recalcitrant southern member states. In many ways the symbolically important major reform measures implemented by the German Schröder government could be interpreted as a cautionary tale for would-be reformers. Though the German government succeeded in abolishing a tier of unemployment compensation, stimulated self-employment and reduced the number of claimants for unemployment overall, the implementation of the so-called Hartz agenda was politically highly contested. Ultimately, the reform agenda led to the downfall of the Schröder coalition government in 2005. Whilst the economic growth trajectory of the German economy from the mid-2000s onwards outperformed that of the rest of continental and Mediterranean Europe, the political price tag that governments willing to emulate this course would have to pay seemed certainly very high. Germany went furthest in implementing liberal reforms to welfare and social policy, but the government instigating these measures was severely punished. Critics on the Left also claimed that the German policy of wage restraint was tantamount to a beggar-thy-neighbour policy at the expense of other European countries (Dufresne 2015). In any event, developments in Germany certainly did nothing to persuade European governments elsewhere to emulate a similar strategy aimed at labour market deregulation.

The 2010s: pushback against the liberal modernization image Whatever appeal the new identity of this policy domain might have held, the restated ambition of the Lisbon Agenda, dusted off and reinvented as the Agenda 2020, encountered choppy waters during the decade of the 2010s. The fallout of the great economic crisis of 2008 complicated matters considerably. The response taken by many, though not all European governments, which essentially consisted of socializing underperforming bank loans and debts and thus precipitating a sovereign debt crisis, was used to justify cutbacks to social and public spending. In its responses to economic problems in southern Europe, especially in Italy and Greece, the Commission made clear that it saw labour market deregulation and cutbacks to labour market entry as the only way forward in redressing principal impediments to economic growth and recovery. But the particular problems of these two countries differed from those encountered in Spain, Cyprus, Hungary, Latvia, Slovenia and Ireland. Faced with economic crises in multiple theatres that might have been triggered by the fallout of the US banking and housing market crisis, but played out very differently depending on the national setting (Sandbu Reprinted from the journal

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2015), the Commission struggled to craft a new overarching policy domain identity. Instead, there were national response strategies (Bermeo and Pontusson 2012; Schmidt and Thatcher 2013) that varied considerably, with the Commission playing an active role only in a handful of cases. Given that these major economic problems now dominated the agenda, it proved difficult either to continue pursuing the same policy identity as during the previous decade or to create a new one. Pursuing ‘business as usual’ would have rightfully been interpreted as tone-deafness. But what sort of new identity should the Commission draw up and deploy in light of an economic crisis that hit certain countries disproportionately hard, whilst others recuperated much more readily, if not easily? The European Commission struggled and ultimately failed to provide an answer and generate a genuinely new and compelling image for the policy domain during that decade, and the result was stagnation and a somewhat half-hearted attempt to recycle the Lisbon Agenda. Most analysts agree, pointing to the conflict between a more ‘social’ and re-regulatory agenda that national-level leftist politicians favoured on the one hand and the austerity-focused approach of the Troika of IMF, Commission and ECB towards Southern Europe and Greece in particular, with the latter ultimately carrying more weight (Copeland and James 2014). The repackaged Europe 2020 did contain new elements, notably separately agreed upon targets of 20% for greenhouse reduction and renewable energy. Two other new elements were the explicit commitment to reducing the percentage of early school leavers from 15 to 10% and reducing the percentage of Europeans living below the poverty level by 25%. Other elements were simply either copied directly from the Lisbon Agenda (such as the commitment to invest at least 3% of GDP into R and D) or modified slightly, as in the case of raising the target employment rate from 70 to 75% (EURActiv 2010). Ultimately, Europe 2020 did not diverge much from the Lisbon Agenda, then, with the somewhat odd addition of the ‘green energy’ component perhaps indicative of an attempt to bestow a somewhat progressive and modern image upon economic governance. However, with the newly rolled out surveillance of national budget making (‘European semester’) to ensure compliance with the Maastricht criteria, it was clear that ultimately the commitment to more conservative macroeconomic targets prevailed (European Commission 2010). Among the member states the ideological homogeneity that had prevailed during the late 1990s was gone. National interests differed dramatically, even among countries governed by ideologically similar coalition governments. The aftermath of the single currency crisis had highlighted drastic differences in opinion regarding macroeconomic governance in northern and southern Europe. Serious concerns regarding the future direction of European integration prompted a slim majority of the British electorate to support ending EU membership altogether. Partly underpinning this dramatic decision was a concern shared across Europe about excessive levels of immigration. The last point is expanded upon below in considerable detail. There simply was no real common ground to be found among member states, and any attempt at crafting a common policy or identity seemed fraught, as the underwhelming Europe 2020 agenda reflects. Compounding and exacerbating the difficulties the Commission encountered was the fact that the impact of the three rounds of EU eastward enlargement had created at least three new problems for the Commission. 155

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Firstly, the rapid and sizable enlargement brought a group of countries into the membership fold that consisted of notably different and poorer entities with considerably laxer levels of social protection (Hoepner and Schaefer 2012). The prospect of weaving together a coherent social policy programme seemed to be practically impossible in light of the sheer institutional diversity now apparent. What direction should be pursued given the immense differences in terms of levels of welfare spending, configurations of systems of industrial relations, wage levels and labour market regulation? What sort of policy image ought to be produced and disseminated in light of such extreme divergence? But equally importantly, the newcomer states showed an aversion to any hint of re-regulatory Social Democratic policy. Governments in the region perceived of their relatively low wages and light touch labour market regulation as an important advantage in attracting foreign direct investment (Noelke and Vliegenthart 2009). They would have likely objected to a return to the compensatory Social Democratic policy image of the 1990s. Similarly, the deregulatory liberal modernization image of the 2000s promised little purchase in central and eastern Europe. Low levels of labour market participation were hardly a problem in the region. Quite the opposite: central and eastern Europeans took full advantage of the freedom of labour mobility, pursuing higher wages and more job opportunities in Western Europe. If anything, the region experienced labour shortages in certain professions, as large-scale emigration created negative ramifications. With the passing of time, the new member states were becoming more assertive and self-confident as opposed to the much more obsequious stance of the early 2000s. A policy image that would be foisted upon them would not gain much political sympathy or obtain much traction. Secondly, EU eastward enlargement created concerns regarding mass immigration and so-called social dumping by way of transnational service provision in Western Europe. This was not an altogether new problématique and had emerged in similar form before in the early 1990s, ultimately prompting the EU Directive on Posted Workers (Menz 2003). In an EU with enormous wage gaps between eastern and western Europe, in extreme cases reaching the ratio of 1:30, western trade unions and left-leaning parties feared replacement effects, wage dumping and a downward ratcheting effect caused by mass immigration and posting of workers from Central Europe. The Commission dealt with this matter extremely poorly. At first there was no attempt whatsoever to assuage concerns in Western Europe. Subsequently, the floating of the so-called General Services or ‘Bolkestein’ directive suggested that far from being aware of the problem, the Commission sought to push liberalization much further, including legalizing the posting of workers in much broader segments of the economy. The directive incited considerable controversy and political backlash, seeing that it was perceived on the political Left as an embodiment of an excessively liberal economic policy orientation (Crespy 2010). Only following considerable political criticism did the Commission guarantee the vitally important country of destination principle, according to which service providers had to respect country of destination labour market regulations and wages where legally binding, as had been enshrined in the original 1997 Posted Workers Directive (96/71/EC, enhanced by the Enforcement Directive (2014/67/EU)). Though outside of the purview of the Reprinted from the journal

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Commission, the European Court of Justice passed four controversial judgments, which reinforced the rights of transnational service providers and limited the national purview for re-regulation (Barnard 2014). Taken together, the impression conveyed was that not only did no cohesive policy domain identity consist any longer, but to the extent that one could be pieced together by interpreting the actions of the Commission and the Court, the new image was shrill, excessively liberal and out of touch with the preoccupations of western member states. Just like in the 1990s, accusations surfaced of entrepreneurial activities that deliberately employed arbitrage in extracting maximum advantage from the different wage and wage-related compensation levels across Europe. But whereas in the 1990s the Commission had responded with the Posted Workers Directive which enshrined the host country principle, its somewhat haphazard and ultimately liberal response to the issue suggested either a lack of cohesion or a new very liberal policy identity that was unlikely to fall on fertile soil in Western Europe. Thirdly, intra-European migration, a phenomenon that practically did not exist throughout the 1970s and 1980s, emerged with a vengeance in the 1990s and following eastern enlargement. Re-regulating access to their labour markets by imposing temporary transition periods was an option for member states, most of which availed themselves of. The Commission probably underestimated the volume of such migration and the political backlash it would ultimately generate. Though a few directives were generated that were meant to rein in exploitative conduct on the part of employers via a directive on employer sanctions (Peers 2009), these measures were ostensibly aimed at employers of non-European immigrants. In any case, there was no effort made to craft a policy identity for this field that would take concerns into consideration over labour immigration and perhaps transnational service provision. In the late 1960s explicit attempts were made to safeguard the rights of European migrant workers (68/360/EEC). By contrast, no real efforts were made during the 2010s either to promote migrant worker rights or to take into consideration rising concerns over immigration throughout Europe as expressed in public opinion polls. To the extent that the Commission did pronounce itself on the issue of immigration, it expressed unadulterated support for yet higher levels of net immigration, including from outside of Europe. This was again far from forming a coherent policy image and in any case seemed out of touch with citizens’ concerns. The most dramatic expression of the long-standing disregard for concerns regarding immigration arrived in the form of the Brexit referendum in the UK in the summer of 2016. Whilst British voters rejected continued membership in the EU for a vast array of reasons, including concerns over loss of sovereignty, and levels of British contribution, the immediate open access to the British labour market for all EU citizens was a major bone of contention. The issue of immigration played a significant role in the heated campaign in the run-up to the referendum (Goodwin and Heath 2016). The Commission seemed to offer no real guidance on the matter. To the extent that it did, it sided with the dogmatic position of German Chancellor Merkel who insisted that there would be no abrogation from the freedom of labour mobility, not even a temporary one. This, again, was neither part and parcel of a cohesive policy domain identity nor did it seem to take attuned to concerns over the levels and the impact of mass immigration in the UK. 157

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Conclusion The argument I submit in this article is that policy domain identity is used as a strategic tool by the European Commission to help advance its policymaking agenda. In doing so, however, the Commission needs to display considerable acumen, as an identity out of touch and out of tune with the prevailing sentiments among member states is unlikely to gain much purchase or have much impact. In fact, such identity will probably do more harm than good and impede further strides in policymaking. An identity that is closer aligned with predominant ideas, concepts, preoccupations and ideological concepts shaping the intellectual zeitgeist will, by contrast, aid in advancing a policy agenda, override institutional resistance and smoothen the path of policy implementation. In empirical terms, the article draws on evidence from the field of labour and social policy over the course of the past three decades. The Constitution daftly crafted an image of liberal modernization for this policy domain, with a more statist and regulatory character in the 1990s, and a more employment-focused activating thrust in the 2000s. However, faced with the impact of the economic crisis of 2008, the ramifications of EU eastward enlargement and the challenges of transnational service provisions and intra-European immigration, the Commission struggled and ultimately failed to craft a new cohesive policy domain image. This in turn helps account for the lack of progress the social policy agenda has made over the course of the decade of the 2010s. Unless and until the Commission manages to develop such policy image that provides a powerful and compelling narrative, social and labour market policy is unlikely to rebound from its current phase of stagnation. The scholarly literature in the past has discussed the identity of actors and its relevance for EU policymaking. The constructivist turn in international relations has also inspired accounts that demonstrate how ideas have been used and have influenced political decisions taken in the context of European integration. However, scant attention has been paid to policy domain identity: the skilful crafting of an image, of a brand, of a set of ideas that smoothen policy implementation and constitute a cohesive policy agenda—or at least purport to do so! The ideational content of this identity can be interpreted by carefully interpreting policy output and exploring the consistent red thread linking different pieces. Some past scholarly work has emphasized the importance of discourse in helping legitimize political reform and dramatic policy chance, but here the claim is made that there needs to be a more overarching set of coalescing ideas. The absence of such coherent policy identity will impede policymaking progress. However, European policymakers need to devise an identity which is attuned to national prerogatives and encapsulates national policy notions. This enterprise has become exceedingly difficult in the aftermath of three rounds of EU enlargement and the attendant diversity of social and labour market policy institutions and ideational paradigms. It thus seems very difficult indeed for the Commission to regain momentum and generate a new and compelling policy identity for the domain of labour and social policy that would have appeal and traction in all of the member states.

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Georg Menz holds the Dragas Chair in International Studies at Old Dominion University (USA).

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Comparative European Politics (2019) 17:619–623 https://doi.org/10.1057/s41295-019-00173-6 COMMENT

Comment: the EU and European identity Neil Fligstein1 Published online: 29 March 2019 © Springer Nature Limited 2019

The purpose of this volume is to examine how various actors within EU policy institutions have worked to try and create a European political identity. Each of the papers included in this volume deserves attention. They are thoughtful and full of interesting case studies. There is evidence in each of these papers (summarized by Saurugger and Thatcher 2019) that those who run the policy institutions do work to create some form of common European identity. There is also evidence that the ability to do this depends on the nature of the policy institution, its definition in the various treaties, and the amount of resistance by national governments. The papers explicitly try to avoid two issues: the issue of whether or not the EU is a state and the role of the EU in responding to, creating, or changing the identities of citizens of the member states (Saurugger and Thatcher 2019). My comments focus on a number of issues. First, I want to take up the methodological problems inherent in having such a disparate group of papers. There is a clear kind of selection bias here, and in many ways, these papers compare apples and oranges. Then, I want to suggest what is missing from these papers as a result of the theoretical choices that the authors have made. While the papers focus on the EU authority in policy, many of them fail to connect the domain to all of the possible actors in those domains and across domains to explain what might be going on. Finally, I want to consider what all of this adds up to. In doing so, I bring into play the two issues the editors have ruled out: whether or not the EU is a state and what impact the identities of citizens in the member states have on what is observed here. I have a great deal of sympathy for what was done here. Whenever you gather a group of scholars together to produce a volume on a particular topic, you work to find people who balance off various topics that might be related. But, in a volume that seeks to learn what can generally be found out about how identity is deployed within policy domains of the EU, one needs to at least make a case that the institutions considered are a good sample of what is possible. My first concern is that the

This comment was prepared for a Special Issue of the Journal of European Public Policy on the construction of the EU’s Political Identity in Policy edited by Sabine Saurugger and Mark Thatcher. * Neil Fligstein fl[email protected] 1

Department of Sociology, University of California, Berkeley, CA 94720, USA

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project assumes we know what the authors mean by domains and that the sample that we have gotten is representative of the domains in the EU. So, for example, the Lavenex paper considers “EU asylum and immigration policy.” But this is not really a policy domain where the Commission has the power to produce common agreements. The member state governments, as Lavenex notes, are pretty much responsible for their own policies. I see the paper by Thatcher on cultural heritage policy as also not a policy domain mostly because it has no legitimacy in the various treaties and therefore not really a focus of EU policymaking (except insofar it pertains to the single market). The ECB described by Jones, on the other hand, is an organization that has at least three policy domains, one of which organizes banks, another that contains member state governments’ central banks, and a third that sits to make policy, all of which exist at a supranational level. The ECJ as discussed by Saurugger and Terpana is a domain responsible for the creation and maintenance of the EU legal field and thus certainly a policy domain. The Duina and Smith paper where the EU has a supranational identity in some international negotiations may or may not be a policy field depending on how such a field is defined. Given these are not all equally policy domains, it is difficult to say what one learns by comparing them. Relatedly, what can the selection of these cases tell us more generally about the process of building European identity in policy domains? These sets of cases were not chosen to be representative, and so the general lessons one might draw are uncertain. Moreover, the relative significance of each of these domains to the overall EU project is not considered. Given the EU has so little treaty jurisdiction over social or labor issues, as the Menz paper shows, does comparing that domain to the ECB or the ECJ really make sense? Isn’t the simplest explanation that the EU does not really have much influence here, the best explanation as to why there is no EU identity in social or labor issues? The ECB, on the other hand, is clearly a core institution to the EU project. That it is so core and so “EU” should mean it is telling us something important about the EU as a governance structure with an identity. Without understanding the universe from which these cases are sampled and the degree to which the cases are important to the overall functioning of the EU, it is hard to tell what the main results of the papers tell us about how far the European identity projects of the EU have gone. There is another set of problems raised by isolating the domains in the ways in which the papers are presented. The existing stable institutions of the EU are clearly going to be more European in their origin and likely to have stronger European identity and makeup than those which do not have formal organization or are constituted in an ad hoc way. But those institutions are of varying size and importance. While the papers avoid the question of whether or not the EU is a state, it is hard to avoid that fact that the ECJ and the ECB are core to the political system that is the EU while many of the other papers take on domains that are not core. Let me elaborate this point. Alec Stone Sweet and I wrote a paper in 2002 where we show that the process whereby the core of the EU project, the Court, the lobbying process in Brussels, and the production of directives around the single market linked up to form a political system. The origination of that system was not created through the intent of the original organizational design in the Treaty of Rome. Reprinted from the journal

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Instead, actors creatively did what Saurugger (2013) says they do: they use what they have and they make something happen. In the EU case, people who traded were the first movers in the formation of the core of the EU. They were the ones who sued under EU rules in national courts (Fligstein and Stone Sweet 2002). When the ECJ agreed that they had standing and upheld their rights to do business across member state lines, it stimulated two political reactions. First, groups began to form to lobby the Commission and the Council in Brussels and the output of directives increased (Fligstein and Stone Sweet 2002). Over time, this ratcheted up to create the most important political structure that exists in the EU today. This part of the EU is actually not only relatively well institutionalized in the treaties but is populated by groups representing a wide variety of interests, mostly those of people doing business across Europe. Now the question that this story raises is how significant are some of the case studies in this volume compared to the core activity of creating a real European politics around the single market and its main constituency, those engaged in cross border trade? This is particularly a question when one can see the ECJ as part of this edifice and the ECB pretty closely allied with it. But the papers in the volume operate as if each of the domains they study is independent of each other. The papers also do little to assess the overall importance of the domains to the core functioning of the EU. By being siloed, the papers ignore the relations between domains to one another in forming a system of governance. Put another way, the existence of a European identity in a domain probably means it strongly attaches to the overall system of EU governance. Lack of such a link is prima facie evidence that the domain is not part of that structure. My second issue is exactly what the authors have chosen to study about these domains. The core attempt is to try and find the use of language that connotes a European set of values or justifications for action. While this is certainly legitimate and well defined as an object of study, the issue of exactly what constitutes these domains is left very vague. While most of the papers do a good job situating the main EU organization in the papers, they vary greatly in who else is considered a participant in these activities. There is always a mention of EU organizations, sometimes a mention of member state governments, but there is little mention of other stakeholders like traders, lobbying groups, or civil society associations. Any discussion of these domains that does not include who is a participant and what their role is and their take on what is going on, potentially under- or over-estimates the degree to which the domain is European in its orientation. It also could easily miss important dynamics of change and stability. This raises a more general question of what these studies actually show. How is what goes on in each of these policy arenas any different than any other political system, particularly one based on some form of federalism where there is a division of powers between states and a central authority? After reading these papers, one is struck by how similar the politics of these varying domains are to domains that exist in other governments. So, in the USA, we have a Supreme Court which hears cases from private citizens, but also from representatives of state governments, particularly their attorney generals. It would be odd to ask the question of whether or not such a legal system was “American.” But we can clearly see conflicts in that 163

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legal system that look a lot like those described in the Saurugger and Terpana paper. Similarly, the Federal Reserve in the USA may try and get the federal government to reign in its fiscal policy, but it lacks the levers to do so just like the ECB. The Menz paper shows how little supranational capacity exists for labor and social policy in the EU and how most responsibility for these things lies with the member state governments. But in federal systems, we often see this division of power around these issues. If you look at educational policy in the USA, you would find that state governments control funding and rules for all levels of schooling with the federal government having little authority to do much, just like the EU. The political dynamics of these policy domains reflect their institutional legitimacy, their organizational capacity, and the nature of who the players are and what the conflict is between the players in the political domain. I am less sure that the “national” identities of the players have a huge impact on who has power and who gets what and why. This brings me to my last issue, what does all of this add up to? It is here that the question of whether or not the EU is a state and if so, what kind is important. It is here that also the issue of what the citizens of Europe want and who they think they are is relevant as well. The authors of these papers suggest that there are two issues which appear to be tearing Europe apart: the forced fiscal austerity in response to the financial crisis and the refugee crisis caused mostly by the wars in Syria and Afghanistan, as well as ongoing conflicts in Africa. But both of these crises had policy responses generated not in the supranational arenas of the EU but in the intergovernmental relations of the EU. The fact that the conflicts over these policies were so much about how each member state government perceived its national interest meant that a lack of European identity and indeed any institutional legitimacy in these domains has caused an erosion of support for the EU. The austerity project, ironically, was enforced by the Council acting as an intergovernmental alliance. The northern countries, particularly, the Germans were very aggressive in pushing an austerity agenda that involved cutbacks in government spending in the face of horrific recessions. The so-called PIIGS (Portugal, Italy, Ireland, Greece, and Spain) were given little choice but to tighten their belts in response to a crisis that few of the citizens of those countries caused directly. It became clear to people living in these countries that the EU was not a form of solidarity that embraced everyone. The effects of this intergovernmental agreement were to increase dislike of the EU and increase national identity (Polyakova and Fligstein 2016). The refugee crisis also showed clearly the intergovernmental nature of that policy domain in line with the papers by Lavenex and Diez. That the crisis ended up being entirely a matter of national decision making was a result of the fact that the member state governments had not been able to put a stronger agreement in place before this crisis began. Both the financial crisis and the refugee crises were part of the fuel which has brought to the fore populist and nationalist politicians across Europe. These politicians have been Eurosceptical to an extreme. I argue that the current crisis of the EU, including the Brexit, is not a function of the failure of the supranational part of the EU from working the way they should to create a sense of Europe, but instead a product of the deep divisions across the member state nations on issues Reprinted from the journal

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of sovereignty and national identity that preceded the events of the past 10 years. It is here that Fabbrini paper comes into play. It is not just the contradiction between the supranational EU and the intergovernmental EU which restricts a more united Europe from happening. It is instead that democratically elected member state governments following the wishes of their citizens have historically refused to pool sovereignty around issues of national concern like immigration, labor, social, and fiscal policies. Citizens with mostly national identities view their governments as the actors who should work to protect their nation. As I have shown in earlier work, 90% of citizens in the member states have mostly a national identity (Fligstein 2008). The financial crisis and the refugee crisis both offer instances where other member state governments pushed policies on citizens not living in their states. Those citizens wanted their governments to protect them from exactly those kinds of policies. But these crises have only reinforced for most people across Europe the sense that they have a national identity. Understandably, they want their national government to put them first. Whether or not one considers the EU to be a state is a matter of definition. But it is clear that the current division of power between the EU and the member state governments has only been reinforced in these crises. This division will only change when citizens of most countries decide that they share a common fate in those domains. This seems unlikely.

References Fligstein, N. 2008. Euroclash: The EU, European identity, and the future of Europe. Oxford: Oxford University Press. Fligstein, N., and A. Stone Sweet. 2002. Constructing polities and markets: An institutionalist account of European integration. American Journal of Sociology 107(5): 1206–1243. Polyakova, A., and N. Fligstein. 2016. Is European integration causing Europe to become more nationalist? Evidence from the 2007–9 financial crisis. Journal of European Public Policy 23(1): 60–83. Saurugger, S. 2013. Constructivism and public policy approaches in the EU. Journal of European Public Policy 20(6): 888–906. Saurugger, S., and M. Thatcher. 2019. Constructing the EU’s political identity in policy making. Comparative European Politics. https://doi.org/10.1057/s41295-019-00169-2.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Neil Fligstein is the Class of 1939 Chancellor’s Professor in the Department of Sociology at the University of California. He is the author of seven books including The Transformation of Corporate Control (Harvard University Press, 1993), The Architecture of Markets (Princeton University Press 2001), Euroclash (Oxford University Press, 2008), and A Theory of Fields (with Doug McAdam, Oxford University Press, 2012).

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Comparative European Politics (2019) 17:624–630 https://doi.org/10.1057/s41295-019-00177-2 ORIGINAL ARTICLE

EU political identity, integration and top-down analyses: a reply to Neil Fligstein Sabine Saurugger1 · Mark Thatcher2 Published online: 29 March 2019 © Springer Nature Limited 2019

Abstract This reply to Neil Fligsteins thought-provoking comments on this special issue’s contributions analyses three specific aspects: the problems of comparing identity construction in different policy areas due to differences in European integration; the focus on EU institutions and lack of attention to social groups and citizens; the EU as a state. We argue that instead of offering one overarching theory of EU state building, the articles analyse what most would regard as a key aspect of a state— political identity—and then consider its top-down policy aspect. This has several advantages: a degree of manageability; seeking careful hypotheses; separating parts that are conceptually distinct, notably the creation of a political identity and then whether citizens actually identify with it; investigating causal linkages. Keywords Identity · European Union · Public policy · Society

In response to our invitation to offer comments on the special issue, Neil Fligstein provided us with a fantastically provocative piece on the special issue for which we are grateful. It offers thought-provoking criticisms for the future but also a chance to explain and defend our choices and approach. Neil Fligstein examines three main issues: the problems of comparing identity construction in different policy areas due to differences in European integration; the focus on EU institutions and lack of attention to social groups and citizens; the EU as a state. We will address these various issues in turn. The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The correction to the chapter is available at 10.1007/978-3-031-17407-0_12 * Sabine Saurugger [email protected] Mark Thatcher [email protected] 1

Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, 38000 Grenoble, France

2

Department of Political Science, Luiss University Rome, Rome, Italy

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Identity, integration and cross-domain comparison Neil Fligstein starts by arguing that the selected areas show a selection bias; notably comparing integrated and/or central policy areas with less integrated and/or central ones leads to comparing apples with pears. There are strong differences in the extent of integration across fields. Indeed, he argues that areas such as immigration and culture are not domains because they are not ones where ‘the Commission has the power to produce common agreements’ and ‘it has no legitimacy in the various treaties and therefore not really a focus of EU policymaking (except insofar it pertains to the single market).’ He underlines the important studies by neo-functionalists and the ways in which they show processes whereby transnational exchange lead actors press for greater integration, and how these processes vary across fields. While we understand the argument, we disagree about comparison and very importantly, distinguish identity construction and integration. First, the aim of selecting these policy areas and institutions was precisely to create variance in order to analyse when and under which circumstances actors active in these contexts are able to create a common policy identity. It would indeed have been a problem if  we  had analysed both policy and organisational identities, i.e. the internal identity of the ECB or the Commission. Instead, the articles included in this special issue analyse highly integrated policy fields such as trade (Duina and Smith 2019) as well as public policies that are less supranational such as cultural policy (Thatcher 2019). Others, such as EMU (Jones 2019), immigration (Lavenex 2019) or the neighbourhood policy (Diez 2019) are mixed, or differentiated policy fields, in terms of the extent of integration. Studying identity formation in these policy fields allowed us inductively to develop a series of hypotheses presented in the introduction. Identity formation in these policy fields varies based on five different variables ranging from interests and preferences of members states to power relations between institutions, external pressures and rival policy identities at member state level. The analysis of conflicts and cooperation amongst actors in different policy fields allows the authors to illustrate the embeddedness of these domains and relate it to EU identity formation. Far from developing in a vacuum, policy identities emerge through interaction and opposition. Duina and Smith (2019) show this process of identity creation in the field of trade policy; Georg Menz (2019) shows that the emergence of EU policy in one area led to pressures for more policy identity in a related one: the development of the single market in the 1980s triggered Jacques Delors to search to offset liberalisation with a ‘social market’ identity. Furthermore, some aspects of social policy are linked to migration policy, some other to broader sovereignty concerns as Lavenex points out. Hence, the articles show that policy areas and institutions are not unitary fields. Their embeddedness, as Neil Fligstein rightly pointed out, makes it difficult, if not impossible to determine their borders. The ongoing process of differentiation is adding to this complexity. Contrary to the 1990s when policy areas could be relatively well described as either supranational or intergovernmental, Reprinted from the journal

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this distinction has become increasingly blurred (Leuffen et  al. 2012). All the domains examined have EU legal bases—including culture and welfare. Even within those where the supranational elements are weaker than others, there are significant legal powers for EU institutions. There have also been changes over time in both directions of greater supranational powers in some fields (e.g. Culture and welfare) but also attempts to rein in EU institutions such as the Court of Justice of the European Union or European Central Bank. Therefore, in order to analyse the identity-building process in an empirically meaningful way, policy areas and institutions have to be selected and cannot be treated in an overall, macro-sociological manner. The hypotheses included in the introduction of the special issue are the result of the in-depth analysis across and within policy fields, often over periods of change. We use variations across and within policy domains to increase our analytical leverage. Perhaps equally and fundamentally, integration offers an explanatory factor rather than the end point of our analysis. Debates about the extent of integration and explanations for it have dominated studies of the EU for many years, and Neil Fligstein and others have made seminal contributions, notably the revival of neo-functionalist explanations. However, new issues are coming to the fore in European politics, especially in the past decade, of which political identity is a good example. There are both theoretical and empirical reasons to maintain integration as conceptually distinct from political identity. The former relates to the development of supranational authority—rulemaking powers, whereas the identity is about distinct, articulated values and then a process of identification. Although early neo-functionalist scholars of European integration included a transfer of loyalties to the EU in integration (e.g. Haas 1958; Deutsch 1957; cf. Risse 2005), more recent work has not. As prominent neo-functionalists Alec Stone Sweet and Wayne Sandholz argue: ‘we leave as an open question the extent to which the loyalties and identities of actors will shift from the national to the European level. There is substantial room for supranational governance without an ultimate shift in identification.’ It is perfectly possible for integration to proceed without the EU setting out a clear political identity. Indeed, those looking at ‘integration by stealth ‘or ‘covert integration’ analyse the many advantages that avoiding clarity, including a political identity in the sense of clear values that are articulated and differentiated from those of other polities, can have for actors seeking greater European integration (e.g. Héritier 2015; Mény 2014; Meunier 2017). A third possibility is that identity proceeds before integration or may even be a causal contributor to integration. The linkage between integration, and especially supranationalism, and identity must therefore be explored rather than either assumed or conflated (cf. Fabbrini and Puetter 2016) . Empirically, our papers certainly find relationships between legal integration and identity creation efforts by EU institutions. However, such relationships are far from simple nor can the latter be ‘read off’ the former. Often integration has aided political identity creation, and at times, it has preceded it, notably in monetary policy. However, EU powers have sometimes increased without a corresponding rise in EU identity—parts of cultural heritage policy or even of monetary policy offer good examples (Thatcher 2019; Jones 2019). Equally, the content of identity matters— for example, whether EU institutions seek to create a market identity or a social 169

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one (Saurugger and Terpan 2019) or the balance between economic and other values (Menz 2019; Thatcher 2019)—not just for the kind of EU identity but also its strength in term of its distinctiveness. Moreover, the linkages are often complex. Thus, Sergio Fabbrini shows the contradictory forces set off by different types of political identity in supranational versus intergovernmentalism, while Erik Jones analyses how greater monetary powers lead unelected EU policy makers to want to create a political identity to deal with the problems that arise (Fabbrini 2019; Jones 2019). Moreover, integration may be compatible with different forms of identity, with strong contestation about which should prevail—as Sandra Lavenex (2019) shows by looking at statist, normative power and economic EU identities in immigration.

Citizens, social groups and EU institutions in identity building A further key issue concerns the focus on EU institutions and exclusion of other groups, including citizens. Neil Fligstein points to the extent of citizen identification as a key problem, as well as other groups, especially as he argues that other groups have led to integration to such an extent that we must discuss the EU as a form of state. We quite explicitly chose not to focus on citizens and their identification (or lack of identification) with the EU. Quite apart from the volume of work that has already been done on this issue (e.g. Bruter 2005; Diez Medrano 2003; Checkel and Katzenstein  2009; Risse 2010; Duchesne et  al. 2013; van Ingelgom 2014; Hooghe et  al. 2017), the central reason is that the process of identification involves the existence of an identity to identify with. If the EU has created little identity, then the process of identification is unlikely to occur. The literature on European nation state building underlines that identity creation has often been a top-down process, as key institutions—national government, the monarchy, army, education system, etc.—developed an identity that citizens then identified with, often in times of war and crisis (Elias 1975; Fukuyama 2004). Of course, we live in different times and the EU cannot be assumed to follow the same path as a nineteenth-century European nation state, so we focused on the EU’s central activity—policy making—across major fields. We also examined the content of the EU’s identity in various fields, as this too is likely to be important for citizen identification. Equally, the focus on EU institutions rather than a whole gamut of groups arises for both empirical and theoretical reasons. We are concerned with identity building by EU institutions through policy rather than integration. Neil Fligstein refers to the ‘deployment’ of EU identity, but here our concern is with the development of that identity. Undoubtedly, social groups may contribute to this, and several papers include groups in this way, from trade unions and employers in social policy to those taking legal cases to the CJEU, but their actions pass through or act in conjunction with those of EU institutions that make EU policies. It will be extremely useful to further consider whether, how and why social groups act in relation to identity building by EU institutions.

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The EU as a state The issue of whether the EU is now ‘a state’ or its ‘stateness’ is increasingly debated (for just a few major contributions, see Richardson 2012; Schmidt 2009; Genschel and Jachtenfuchs 2014). It is a fascinating and big question. One approach to big questions is to offer overarching theories. This has many advantages, such as applying parsimonious theories and applying large-scale comparisons, notably between the EU and nineteenth-century state building in Europe or federal systems such as the USA or Germany. The conceptual tools political scientists as well as sociologists forged to study the state have been very useful, to study and understand European integration and provoke debate and comparisons, as Neil Fligstein was amongst the first scholars to show in his seminal work (Fligstein and Mara-Drita 1996; Fligstein 2008). However, another approach to big questions is to break them down into more manageable parts and offer medium-level theorising. This is the strategy we have adopted here, for several reasons: the concept of ‘the state’ is of course highly contested; its current meaning in Europe is equally open to debate (cf. King and Le Galès 2017); the application of a concept usually developed for nineteenth-century and twentieth-century nation states to an international polity that is varied across institutions and domains, as well as changing such as the EU, calls for great care; it is a multi-variable concept. The current development of the EU, where intergovernmental decision-making and differentiated integration have become increasingly visible, questions the state-like character and the parallels with the US even further. Equally, identity creation is also distinct from the distribution of powers. Neil Fligstein argues that ‘I am less sure that the “national” identities of the players [in federal systems] have a huge impact on who has power and who gets what and why.’ Quite apart from the fact that sharp battles linked with identity have often accompanied the creation of federal states such as the USA or Germany, and continue even today, whether identities affect power distribution is a question that calls for analysis. It follows on from whether those identities exist and what their contents are—if identities at some levels are weak and/or not in conflict with those at other levels, this is likely to influence debates about state creation. Instead of offering one overarching theory of EU state building, we analyse what most would regard as a key aspect of a state—political identity—and then consider its top-down policy aspect. This has several advantages: a degree of manageability; seeking careful hypotheses; separating parts that are conceptually distinct, notably the creation of a political identity and then whether citizens actually identify with it; investigating causal linkages. The papers certainly offer evidence that can then form part of a broad debate about the EU as a state—from the limits on the EU as a polity in Sandra Lavenex’s paper on different forms of EU identity in immigration to the drawing of borders in Thomas Diez’s discussion (2019). But, we seek to offer a bounded analysis of what we regard as already a set of complex questions around an issue that in itself is important. On one point, however, we are much inclined to agree with Neil Fligstein: the gap between the EU’s powers and use of its powers and strong national identities 171

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creates major problems. As Sergio Fabbrini (2019) points out, there are enormous tensions between supranational and intergovernmental identities. However, a major part of the answer to this question lies in the extent to which the EU itself has been able in its main activity, namely policy making, to develop a political identity and the content of that identity.

References Bruter, M. 2005. Citizens of Europe? The emergence of a mass European identity. Basingstoke: Palgrave Macmillan. Checkel, J.T., and P.J. Katzenstein (eds.). 2009. European identity. Cambridge: Cambridge University Press. Deutsch, K.W. 1957. Political community and the North Atlantic area: International organization in the light of historical experience. Princeton, NJ: Princeton University Press. Diez, T. 2019. Transforming identity in international Society: The potential and failure of European integration. Comparative European Politics. Díez Medrano, J. 2003. Framing Europe. Attitudes to European Integration in Germany, Spain, and The United Kingdom. Princeton: Princeton University Press. Duchesne, S., E. Frazer, F. Haegel, and V. van Ingelgom (eds.). 2013. Citizens’ reactions to European integration compared: Overlooking Europe. Basingstoke: Palgrave Macmillan. Duina, F. and Smith, Z. 2019. Affirming Europe with trade: Deal negotiations and the making of a political identity. Comparative European Politics. Elias, N. 1975. La dynamique de l’Occident. Paris: Calmann-Lévy. Fabbrini, S. 2019. Constructing and de-constructing the European Political Identity: The contradictory logic of the EU’s institutional system. Comparative European Politics Fabbrini, S., and U. Puetter. 2016. Integration without supranationalisation: studying the lead roles of the European Council and the Council in post-Lisbon EU politics. Journal of European Integration 38(5): 481–495. Fligstein, N. 2008. Euroclash: The EU, European identity, and the future of Europe. Oxford: Oxford University Press. Fligstein, N., and I. Mara-Drita. 1996. How to make a market: Reflections on the attempt to create a single market in the European Union. American Journal of Sociology 102(1): 1–33. Fukuyama, F. (2004) State building: Governance and world order in the 21st century. Profile Books. Genschel, P., and M. Jachtenfuchs (eds.). 2014. Beyond the regulatory polity? The European integration of core state powers. Oxford: Oxford University Press. Haas, E.B. 1958. The uniting of Europe. Stanford: Stanford University Press. Héritier, A. 2015. Covert integration in the European Union. In European union: Power and policy-making, 4th ed, ed. S. Mazey and J. Richardson. London: Routledge. Hooghe, Marc, and Soetkin Verhaegen. 2017. The effect of political trust and trust in European citizens on European identity. European Political Science Review 9(02): 161–181. Jones, E. 2019. Do Central Bankers Dream of Political Union? From Epistemic Community to Common Identity. Comparative European Politics King, D., and P. Le Galès (eds.). 2017. The reconfiguration of the state in Europe. Oxford: Oxford University Press. Lavenex, S. 2019. Common Market, Normative Power or Super-State? Conflicting political identities in EU asylum and immigration policy. Comparative European Politics Leuffen, D., Rittberger, B. and Schimmelfennig, F. (2012) Differentiated integration: Explaining variation in the European Union. Macmillan International Higher Education. Mény, Y. 2014. Managing the EU crises: Another way of integration by stealth? West European Politics 37(6): 1336–1353. Meunier, S. 2017. Integration by stealth: How the European Union gained competence over foreign direct investment. Journal of Common Market Studies 55(3): 593–610. Menz 2019. Understanding the identity of a policy field: The European commission and liberal modernization in the domain of labour and social policy. Comparative European Politics.

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Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France) and research fellow at Pacte. Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London School of Economics.

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Correction to: Constructing the EU’s Political Identity Sabine Saurugger and Mark Thatcher

Correction to: S. Saurugger and M. Thatcher (eds.), Constructing the EU's Political Identity, https://doi.org/10.1007/978-3-031-17407-0 The original version of the book was revised with the following belated correction: The affiliation of Mark Thatcher has been changed to “Department of Political Science, Luiss University, Rome, Italy”. The book has been updated with the change.

The updated original version of the book can be found at https://doi.org/10.1007/978-3-031-17407-0 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 S. Saurugger and M. Thatcher (eds.), Constructing the EU's Political Identity, https://doi.org/10.1007/978-3-031-17407-0_12

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