Markus Patberg

 

Brexit and other forms of disintegration give rise to a democratic puzzle. While it must be possible, for democratic reasons, to partially or entirely reverse European integration, any such step threatens the European Union’s democratic achievements. In his article recently published in Political Studies, Markus Patberg explains this puzzle and asks under what conditions reversals of European integration can be regarded as democratic. He formulates three principles of legitimate disintegration and outlines their implications for the post-Brexit relations between the United Kingdom and the European Union.

 

Brexit has amplified the debate about the disintegration of the European Union (EU), which has been burgeoning since the euro crisis. Much of the literature focuses on empirical aspects and asks whether theories of European integration can also explain disintegration or perhaps even predict under what conditions it is likely to occur. I approach the issue from a normative perspective and ask: Can disintegration be democratic?

 

Disintegration as a Form of Constitutional Politics

I conceptualize EU disintegration as a way of changing the constitutional order of a supranational polity, i.e. of a democratic order beyond the state in which individuals have attained a new citizen status associated with political rights. I focus on cases in which the member states reorganize public authority by changing the EU treaties or their scope of application. This can take four different forms:

 

  1. A release of individual member states from rules they were previously subject to
  2. A collective decision to reverse a particular aspect of integration
  3. An exit of one or several member states
  4. A dissolution of the supranational polity

 

All these types of disintegration have in common that they result in a re-nationalisation of competences. Such decisions should be treated as a form of constitutional politics because they concern the question of who is allowed to decide what under which conditions. They can affect – negatively, but also positively – the status, rights, and capacities of citizens, and the functionality of democratic procedures and institutions.

 

EU Disintegration: Legitimate Change or Regression?

Disintegration gives rise to a democratic puzzle because the possibility of reversing European integration is both a requirement of political autonomy and a threat to it.

Due to its incremental and experimental character, European integration regularly produces unintended consequences, which can be detrimental to the overall project and negatively affect people’s lives. Think of the structural defects of the Economic and Monetary Union, institutional reforms advanced in a mode of emergency politics, or the over-constitutionalization of the EU treaties.

Such developments give particular importance to the democratic principle that constitutional decisions must be reversible. Disintegration is not necessarily a destructive choice but can be a constructive response to problematic constitutional developments. It can even be “integration-friendly” if it does away with rules that erode European solidarity because they undermine the mutually beneficial character of EU institutions. Citizens must be able to get rid of dysfunctional structures of public authority.

On the other hand, withdrawals from or the (partial) dismantling of the EU can deprive citizens of a form of political autonomy that cannot be replaced at the nation-state level. For EU citizens, any reversal of European integration carries the danger of a weakening or loss of supranational democracy, which can happen, for example, through a revocation of political rights or the abolishment of institutions that provide regulatory capacities for cross-border political problems.

Disintegration is thus a double-edged sword. While it is essential, for democratic reasons, that reversals of European integration are possible, they carry the risk that democratic rights and institutions are undermined or even abolished. The challenge for democratic theory is where to draw the line between legitimate change and regression. This is the democratic puzzle of disintegration.

 

Towards a Solution to the Democratic Puzzle of EU Disintegration

In order to make a first step towards a solution, I discuss if and to what extent European integration has produced democracy-related “ratchet effects” that limit the scope for legitimate reversal. I ask what statuses, rights, or capacities of self-government need to be kept in place or substituted in order that disintegration can be regarded as a democratic form of constitutional politics. I formulate and defend three principles of legitimate disintegration:

 

  1. EU-internal irrevocability of the political rights of EU citizens: Measures of disintegration below the level of exit or dissolution must not threaten the political autonomy citizens have attained in the EU. The political rights of EU citizens should count as irrevocable as long as their respective states form part of the supranational polity.  
  2. Restorability of the status of former EU citizens: To reconcile the right to leave the EU with the loss of political autonomy that it implies at the supranational level, current EU citizens should treat former EU citizens as co-citizens “on stand-by” who can reactivate their status by means of a democratic decision.
  3. Responsibility to substitute lost capacities of self-government: In the case of EU exit or dissolution, former and, if applicable, remaining member states should see themselves as obligated to establish alternative forms of democratic co-operation that at least to some extent make up for the incurred loss of self-governing capacities.

 

Implications for the Post-Brexit Relations between UK and EU

We have reached a point where we should worry less about how the Brexit decision was made and more about how the UK and the EU could address its democratic ramifications in the future. Even if the “no deal” scenario becomes reality and the UK simply drops out of the EU, the three principles of legitimate disintegration outlined above would provide constructive guidance in terms of measures that would address the democratic costs of the separation.

The EU should take steps in order to guarantee the restorability of the UK citizens’ former status as EU citizens. By means of a treaty amendment, the EU could keep the door open for a return of the UK by a unilateral decision of its people, taken by referendum or act of parliament. One may regard such an offer as “undeserved” or strategically imprudent, but it would be an adequate response to the fact that Brexit will strip UK citizens of political rights – in many cases against their will.

In turn, the UK would have to assume new responsibilities towards the citizens of the remaining member states, who stand to lose political autonomy due to the EU’s decreasing territorial reach, which implies a loss in regulatory capacity. The UK and the EU should immediately start to establish alternative forms of democratic co-operation with regard to their ongoing interdependencies. Again, this might seem unlikely for political reasons, but it would address a democratic “debt” that the relevant actors have incurred through their decisions.

 

Read the full article published in Political Studies here.

 

Markus Patberg is a Research Fellow in Political Theory at the University of Hamburg, where he works in the DFG-funded project “Reclaiming Constituent Power? Emerging Counter-Narratives of EU Constitutionalisation”. His research focuses on democracy and constitutionalism in supranational contexts such as the European Union. Among his publications are articles in journals such as European Law Journal, Journal of Common Market Studies and Journal of European Integration.