Flexible Europe: Differentiated Integration, Fairness, and Democracy 9781529219944

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FLEXIBLE EUROPE RICHARD BELLAMY, SANDRA KRÖGER AND MARTA LORIMER

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FLEXIBLE EUROPE

Differentiated Integration, Fairness, and Democracy

RICHARD BELLAMY, SANDRA KRÖGER AND MARTA LORIMER

RICHARD BELLAMY, SANDRA KRÖGER, AND MARTA LORIMER

FLEXIBLE EUROPE Differentiated Integration, Fairness, and Democracy

First published in Great Britain in 2022 by Bristol University Press University of Bristol 1–​9 Old Park Hill Bristol BS2 8BB UK t: +​44 (0)117 954 5940 e: bup-​[email protected] Details of international sales and distribution partners are available at bristoluniversitypress.co.uk © Bristol University Press 2022 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978-1-5292-1992-0 hardcover ISBN 978-1-5292-1993-7 ePub ISBN 978-1-5292-1994-4 ePdf The right of Richard Bellamy, Sandra Kröger and Marta Lorimer to be identified as authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Bristol University Press. Every reasonable effort has been made to obtain permission to reproduce copyrighted material. If, however, anyone knows of an oversight, please contact the publisher. The statements and opinions contained within this publication are solely those of the authors and not of the University of Bristol or Bristol University Press. The University of Bristol and Bristol University Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Bristol University Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design: blu inc, Bristol Image credit: Alamy/steeve-x-art

Contents List of Tables List of Abbreviations About the Authors Acknowledgements

v vi viii ix

Introduction

1

PART I Normative Perspectives on Differentiated Integration one Differentiated Integration as a Fair Scheme of Cooperation two Democracy, Domination, and Differentiated Integration three Democratic Backsliding and the Limits to Differentiated Integration PART II Political Party Perspectives on Differentiated Integration four Party Views on Differentiated Integration five Party Views on the Substantive Fairness of Differentiated Integration six Party Views on the Democratic Dilemmas of Differentiated Integration seven Party Views on Democratic Backsliding and Differentiated Integration

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27 49 68

89 107 122 138

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Conclusion

154

Appendix A:  List of Respondents Appendix B:  Interview Questions Appendix C:  Survey Questions Notes References Index

160 162 165 167 168 182

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List of Tables 2.1 4.1 4.2

5.1

Democracy, diversity, and differentiation 59 Summary of positions on differentiated 94 integration by party and country Summary of position on differentiated 97 integration by European Union position, party family, country wealth, and experience of differentiated integration Summary of positions on substantive 120 fairness of differentiated integration

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List of Abbreviations AfD BE CJEU CP DI DIE LINKE DK ECB ECR ECtHR EL EMU EP EPP EPPO EU FCC Fidesz GAL/​TAN Jobbik K LMP MAD MFF MSZP ND ÖVP PiS PLUS PNL PS

Alternative for Germany Left Bloc Court of Justice of the European Union Constitutional Pluralism Differentiated Integration The Left Democratic Coalition European Central Bank European Conservatives and Reformists European Court of Human Rights Red-​Green Alliance European Monetary Union European Parliament European People’s Party European Public Prosecutor’s Office European Union Federal Constitutional Court Fidesz Hungarian Civic Alliance green-​alternative-​libertarian/​ traditional-​authoritarian-​nationalist Movement for a Better Hungary Conservative People’s Party Politics Can Be Different Mutually Assured Destruction Multiannual Financial Framework Hungarian Socialist Party New Democracy Austrian People’s Party Law and Justice Freedom, Unity and Solidarity Party National Liberal Party Socialist Party

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List of Abbreviations

PSD RV SD SF SPD SPÖ SYRIZA TEU TFEU V UDMR USR WTO

Social Democratic Party Danish Social Liberal Party Social Democrats Socialist People’s Party Social Democratic Party of Germany Social Democratic Party of Austria Coalition of the Radical Left Treaty on European Union Treaty on the Functioning of the European Union Left, Denmark’s Liberal Party Democratic Alliance of Hungarians in Romania Save Romania Union World Trade Organization

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About the Authors Richard Bellamy is Professor of Political Science at University College London. His research combines intellectual history, analytical legal and political philosophy, and comparative politics, and ranges from Italian political thought to European Union politics. His publications include Liberalism and Pluralism: Towards a Politics of Compromise (Routledge, 1999), Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (Cambridge University Press, 2007), A Republican Europe of States: Cosmopolitanism, Intergovernmentalism and Democracy in the EU (Cambridge University Press, 2019), and (with Dario Castiglione) From Maastricht to Brexit: Democracy, Constitutionalism and Citizenship in the EU (ECPR Press/​Rowman and Littlefield, 2019). Sandra Kröger is Associate Professor at the University of Exeter. She is interested in topics related to democracy in the European Union and European integration more broadly. Her most recent publications focus on interest group representation in the European Union, national parliaments, differentiated integration, and Brexit. She chairs the European Consortium for Political Research Network on Differentiated Integration in the European Union. Marta Lorimer is Fellow in European Politics at the London School of Economics and Political Science. Prior to this, she was a postdoctoral researcher at the University of Exeter. Her research focuses on party views of differentiated integration and on far-​r ight views of the European Union. Her work on these topics has been published in the Journal of European Public Policy, Ethnic and Racial Studies, and the Swiss Political Science Review.

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Acknowledgements We gratefully acknowledge the European Union’s Horizon 2020 research and innovation programme for funding the normative and empirical research for this book as part of Work Package 1 of the project ‘Integrating Diversity in the European Union’ (grant agreement number 822304). This funding also allowed us to pay two research assistants, Svenja Gümbel and Valentina Johansson, to transcribe the interviews. We thank them for their excellent work under difficult (pandemic) conditions. Our sincere thanks also go to all the interviewees who gave their time and shared their insights into how political parties think about the idea of a flexible Europe in general and differentiated integration in particular. Almost all the interviews were scheduled before the pandemic set in, in the early months of 2020. Given the exceptional circumstances and their involvement in addressing the resulting challenges, it would have been perfectly understandable had they withdrawn. Yet none of them did. We hope the present book does justice to their views and will be of interest not only to them but also to other party actors. We owe a deep debt of gratitude to the many colleagues who have provided us with constructive and helpful comments and feedback, in some cases multiple times, on various draft papers and chapters of this book. We list them in alphabetical order, and hope we will be forgiven for any inadvertent omissions: Nick Barber, Rainer Bauböck, Michael Blauberger, Dario Castiglione, Francis Cheneval, Mark Dawson, Erik Eriksen, Cécile Fabre, Cristina Fasone, John Erik Fossum, Kira Gartzou-​Katsouyanni, Lise Herman, Chris Hilson, Dan Kelemen, Kasim Khorasanee, Cécile Laborde, Joseph Lacey, Dirk Leuffen, Christopher Lord, Cormac Mac Amhlaigh, David Miller, Glyn Morgan, Kalypso Nicolaïdis, Markus

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Patberg, Simona Piattoni, Enzo Rossi, Andrea Sangiovanni, Antoinette Scherz, Frank Schimmelfennig, Jo Shaw, Adam Swift, Tom Theuns, Hans-​Jörg Trenz, Martijn van den Brink, Philippe Van Parijis, Juri Viehoff, Cosmin Vraciu, Neil Walker, Albert Weale, and Thomas Winzen. Any remaining mistakes or inconsistencies are entirely our responsibility, due no doubt to our failing to follow your advice. This book draws on previous research by the authors that has been published as Bellamy and Kröger (2017, 2021a, 2021b), Bellamy et al (2021), and Kröger et al (2021). We acknowledge the support and advice of these journals’ editors and referees. Last but far from least, we thank our partners, friends, and family for their emotional support in what has been and continues to be a highly challenging period for us all. Everyone’s lives have been disrupted in a number of ways. Many got ill, some died. It is not self-​evident that people will continue to support each other under such extreme circumstances. We are hugely grateful to those who continued to be in touch, and hope we can catch up again with them and others in the near future.

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Introduction

Must European unity come at the expense of national diversity? Both proponents and opponents of European integration often believe so. Many supranationally minded pro-​Europeans consider the European Union’s (EU) historical goals of peace and prosperity as requiring and promoting the overcoming of national differences through greater economic and political integration and the creation of a common European identity alongside the single market and monetary union (Haas, 1958, p 16). By contrast, many more intergovernmentally disposed pro-​Europeans (Moravcsik, 1993, p 480), as well as outright Eurosceptics (Streeck, 2019), criticize such moves for failing to take account of the important social and economic disparities between the member states that they believe make common, supranational, ‘one size fits all’ policies inappropriate. They contend these differences both reflect and give rise to divergent political preferences that can only be adequately recognized by retaining national sovereignty and the capacity for self-​determination of the various peoples of Europe. This book explores the attractions and drawbacks of differentiated integration (DI) as a way of reconciling these two camps. A mechanism increasingly adopted from the 1990s, it allows some member states to be exempted or excluded from participating in certain existing EU policies, and other member states to cooperate in new policy areas and integrate further than some may be willing or able to, with the result that not all policies and standards apply uniformly across the EU (Schimmelfennig and Winzen, 2020). As such, it offers

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the prospect of a more flexible Europe, capable of combining the demand for unity advocated by supporters of greater integration with the ongoing claims for the recognition of diversity insisted on by its critics. The issues provoking these competing visions of European integration and driving the move to DI have become ever more urgent (Bellamy and Castiglione, 2019, pp 1–​2). The enlargement to Central and Eastern Europe from 2004, the Eurozone crisis of 2009 and the migration crisis of 2015/​16 have heightened the tension between unity and diversity within the EU. The widening of Europe to include a number of poorer and less developed states that had only recently emerged from authoritarian rule greatly increased the socio-​economic and political heterogeneity of the EU. The Eurozone crisis not only highlighted the continuing economic disparities among the euro states but also led many to argue that without a further deepening of integration and the creation of a fiscal union the Eurozone would remain unstable. The migration crisis in turn illustrated strong differences in core values between member states. DI emerged as a policy instrument both to address the need to accommodate the socio-​economic disparities occasioned by the widening of the EU to the East, and to manage the divergent political preferences emerging from this development (Schimmelfennig, 2014). It also offered a means to overcome disagreements among the member states over the desirability of a further deepening of the integration process into what had been regarded traditionally as core state powers, such as immigration controls, fiscal policy, defence, and justice and home affairs (Schimmelfennig et al, 2015). For newer member states, DI granted them certain exemptions from policies related to the single market so as to allow their economies to adapt to higher standards and greater competition. For existing member states, it permitted them to exclude newer states from policy areas where they felt these new members either could not meet the commitments involved, as with membership of the Eurozone, or posed a threat to jobs through competition

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Introduction

from cheaper labour and production costs, as in exclusions from free movement under Schengen. It also led some of these older member states to seek exemptions in the form of opt-​outs from moves to deepen integration in certain areas in order to retain domestic control over a policy or to maintain their political and/​or cultural distinctiveness. All these forms of DI raise important normative questions regarding their fairness and democratic legitimacy (Bellamy and Kröger, 2021b). Some of these are familiar from other international and domestic contexts. For example, requests by certain new member states for temporary exemptions resemble the demand for special and differential treatment by developing countries within the World Trade Organization (WTO). In these sort of cases, poorer states request exemptions from uniform rules designed to liberalize trade on formally equal terms on the grounds that they are unfair and favour the developed and wealthier states, who have already crafted the rules of the organization in their favour (Christensen, 2015). Other instances resemble more the demands for special rights and self-​government rights by minority national and other groups within many multicultural and multinational states, including a number of the EU’s own member states (Kymlicka, 1995). Both these examples have been controversial, yet are increasingly seen as not only pragmatically necessary but also normatively justified to accommodate relevant differences within a heterogenous political community. It is unsurprising, therefore, that as the integration process progresses they should increasingly figure within the EU as the most developed instance so far of international and supranational cooperation among democratic states. In this book we shall not only assess whether the resulting opt-​outs, exemptions, and exclusions are fair and legitimate by the lights of certain ideal theories of justice and democracy, but also examine whether they are perceived to be so by political party actors from across the ideological spectrum and within seven member states. We regard this combination as

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important. If DI and the resulting idea of a flexible Europe is to provide a stable and enduring framework for the states and citizens of the EU, they must be viewed as fair and legitimate by those who must live under these arrangements. If they are seen as a mere modus vivendi –​a pragmatic solution to be reluctantly adopted only when no side can obtain their preferred outcome –​then their stability and acceptance will be contingent on the continuing existence of a favourable balance of ever-​changing alliances and circumstances, something that in the current turbulent times cannot be counted on (Rawls, 1993, pp 147–​8). The remainder of this introduction proceeds as follows. We start by outlining the basic concepts and theories that inform the book. First, we offer a guide to the various forms of DI and the main factors underlying demand for them. Second, we relate DI to what has been called a demoicratic account of the EU (Cheneval and Schimmelfennig, 2013; Nicolaïdis, 2013), which we link in turn to the idea of a flexible Europe. We then turn to the two main parts of the book and explain their rationale and the core themes of each of the chapters. We begin with the normative issues raised by DI discussed in Part I and indicate why they are important, and offer a brief preview of Chapters 1–​3. We then turn to the empirical research on the views of party actors in Part II. We provide details of why and how we conducted this research, and summarize our presentation of the material in Chapters 4–​7.1 Differentiated integration: an overview When describing the various categories of DI, it is helpful to align the supply of different types and forms of DI with the drivers fuelling the demand for DI. The drivers can be related to social and economic heterogeneity stemming from the widening of the EU to Central and Eastern Europe, and cultural and political heterogeneity highlighted by concerns with the deepening of the EU (Bellamy and Kröger, 2017). The

4

Introduction

corresponding forms of supply of DI can be linked respectively to Thomas Winzen’s (2016) distinction between ‘capacity’ and ‘sovereignty’ DI. Capacity DI is mainly ‘motivated by efficiency and distr ibutional concerns’ linked, as we noted, to EU enlargements (Schimmelfennig and Winzen, 2014, p 355). It occurs when either existing member states temporarily exclude new member states from certain policy areas because they ‘fear economic and financial losses as a result of market integration with the new member states, the redistribution of EU funds or weak implementation capacity’ (Schimmelfennig and Winzen, 2014, p 361); or new member states seek to be exempted temporarily from integration in a given area and be granted more time to adapt to EU rules and market pressures. In such constellations, DI is seen as a temporary and transitional measure that ideally aids both sides. However, if these differences in capacity are seen as reflecting ‘structural economic and social heterogeneity’ then that can imply ‘less space for uniform integration overall and might lead to some more durable forms of DI than the transitional ones linked to enlargement rounds’ (Bellamy and Kröger, 2017, p 629, original emphasis). Not all member states may have an equivalent ability to contribute towards or interest in providing a given collective good at the EU level. Here it is standard to distinguish public goods, such as defence or air, from club goods, such as a customs union, and common-​pool resources, such as fish stocks (Kölliker, 2001; Lord, 2021). Public goods are non-​excludable and non-​ rivalrous –​I cannot privatize the open air, and my breathing it does not deplete the stock of air for others to breathe. However, that means I cannot exclude others from the benefits or positive externalities of my good environmental policies or the costs or negative externalities of my polluting. By contrast, club goods are excludable but non-​r ivalrous while common-​pool resources are non-​excludable but rivalrous. With regard to club goods, there are clear advantages to restricting the clubs to those with a roughly equivalent ability

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to pay for their production and a common interest in them. If costs were distributed asymmetrically between member states and/​or they valued the benefits to an unequal degree, then provision of that good at the EU level would risk being suboptimal and involving free riding, thereby justifying DI and the formation of an exclusive club of a subset of member states. The deciding factor is the ratio between the advantages of reducing production costs of a particular club good by sharing them among as many member states as possible, and the loss of benefits as the gap widens between the ability and/​ or interest of an individual member state in providing that good and the collective ability and interest of the other member states involved (see Kölliker, 2001). The more heterogeneous the group of participating member states becomes in terms of their capacity to produce the club good and/​or their interest in its benefits, the greater the likelihood that either the EU will refrain from producing a given good, leaving its production to member states, or that some member states will decide to set up a ‘club’ that excludes others. DI might seem less acceptable in the case of public goods and common-​pool resources (Lord, 2021). However, that need not be the case. For example, although the EU has committed to the ‘polluter pays principle’ with regard to the environment (Treaty on the Functioning of the European Union (TFEU) 191), in many international agreements developing countries get partial exemptions on the grounds that historically they industrialized later and have polluted and benefited less than developed countries that, as a result of past pollution, are better able to pay and so have a duty to pick up the slack (Caney, 2010). As a result, even in this area some temporary capacity DI might be warranted. Likewise, the economies of some countries may be more dependent on certain common-​pool resources, such as fish stocks, than others, making exemptions justifiable for them, while other countries may only have an indirect interest in them and so are naturally excluded. Duties to support public goods and common-​pool resources might be regarded as stronger

6

Introduction

than those to support club goods, especially in areas where rights might be violated if these goods are undermined –​as in action to mitigate climate change. However, that suggests all member states have a moral obligation to do something, with that something being determined by whatever justice might require of them according to a given principle, such as ability to pay. It need not mean they have an obligation to cooperate with others within the EU in doing that something, though, unless an adequate provision of the good in question could only be achieved through cooperative action at the EU level (Christiano, 2012, pp 388–​90). Willingness to join a club involves not just capacity but also sovereignty concerns. Sovereignty DI occurs most commonly when competences in core state powers are transferred to the EU in the context of treaty revisions and a government successfully negotiates an opt-​out of a policy transfer due to constitutional and identity issues (Schimmelfennig and Winzen, 2014, p 355). These issues may reflect ideological or pragmatic preferences by certain political actors, as when governments of largely Eurosceptic countries, which either are ideologically opposed to further integration or fear domestic opposition to it, seek a permanent or temporary opt-​out. However, they may also reflect deeper cultural and political differences in core areas about which a government or its citizens feel strongly, such as those related to marriage and divorce, abortion and euthanasia, the use of stem cell research or Sweden’s opt-​ out from regulations regarding snus. In such areas, some governments may be reluctant to integrate a policy and seek to opt out if it is integrated, so as to protect the predominant cultural values of their citizens. Or sovereignty DI may result from diverging views about how much political integration is desirable. For example, the euro and the migration crises have produced a growing constraining dissensus among domestic electorates fearing that EU pressures are eroding economic and social policies at the state level designed to support the losers from globalization (Hooghe and Marks, 2009).

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We argue that sovereignty concerns may prompt not only requests for exemptions or opt-​outs but also the need for exclusions in the form of what we call ‘value’ DI. As we explain in Chapter 3, the possibility of ‘value’ DI arises in cases of democratic backsliding by member states. We argue that the legitimacy, fairness, and credibility of cooperation within the EU depends on all member states meeting certain democratic standards, such as those enumerated in the Copenhagen criteria and implied by the principles laid out in Article 2 of the Treaty on European Union (TEU). As a result, no member state should be exempted from abiding by these standards and the associated values. Instead, a member state that rolls back from adhering to them lacks the democratic capacity for full membership. For example, their governments can no longer be counted on to represent their citizens’ interests or to implement EU measures in an impartial and equitable manner. Therefore, it becomes both necessary and fair to exclude them from certain EU decision-​making processes and programmes until such time as their political systems can be regarded as consistent with democratic values. Our proposed value DI would produce a form of ‘reduced cooperation’ for the excluded member state. It parallels and can be contrasted with another recent development, that of ‘enhanced cooperation’. This mechanism may be employed if some member states wish to adopt a new common policy at the EU level that one or more member states proves unwilling or believes they are unable to join, so that no consensus exists in the Council for this development. In this circumstance, enhanced cooperation allows a vanguard group of at least nine member states to cooperate in an area covered by the Treaties but not an exclusive competence of the EU, with the exception of defence (TEU Article 20, TFEU Articles 326–​ 334). The reluctance to join the policy by certain member states may reflect either sovereignty or capacity concerns, while the decision of other members to go ahead nonetheless and integrate further produces DI with regard to it. However, such

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Introduction

cooperation must be consistent with the Treaties, approved by the Commission, and consented to by the European Parliament (EP) and authorized by a qualified majority in the Council (and unanimously in areas pertaining to the Common Foreign and Security Policy). Non-​cooperating member states must also be able to join it at any time provided they meet the conditions for participation. Current instances include divorce law, patents, the property regimes of international couples, the establishment of the European Public Prosecutor’s Office (EPPO), and an agreement for some member states to levy a financial transaction tax. The idea of flexible Europe and demoicracy DI has been associated with different models of the EU. Capacity DI aimed at easing the integration of newer states has been linked to the idea of a ‘multi-​speed’ Europe. On this account, though some states may integrate faster than others, all are assumed to eventually integrate to the same extent. By contrast, sovereignty DI has been allied to a ‘Europe à la carte’, in which members can pick and choose which policy clubs they wish to join. These models are likely to give rise to a Europe of ‘concentric circles’ or ‘variable geometry’ respectively, whereby different geographic areas have different levels of integration, either temporarily or permanently. All three models can be regarded as variations of a flexible Europe. Among both academics and politicians, the ‘multi-​speed’ model has been regarded as the most acceptable and a ‘Europe à la carte’ as the least. DI has been seen as at best of pragmatic and temporary value, and at worst as a hindrance to the effective and equitable functioning of the EU, or even as producing domination and unfairness. On the positive side, many acknowledge that DI offers a means of reconciling continued integration with an ever more heterogeneous membership (Lord, 2015) and call for a pragmatic approach to EU law that accommodates the dynamics of integration and

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disintegration within the EU legal order (Dehousse, 2003). In a more heterogeneous EU, a multi-​speed approach and some concentric circles or variable geometry allows member states to choose policies more aligned to their needs and preferences (Lord, 2015). Likewise, it might make decision-​making more efficient. On the negative side, critics fear it erodes solidarity between member states and constitutes a challenge to any prospect of developing the EU into a political community based on shared rights and obligations of membership. They argue that opt-​outs undermine the legal unity and authority of the EU (Curtin, 1993; Scott and de Búrca, 2000) as well as the uniform composition of EU institutions. As a result, they worry it creates a differentiated citizenship that threatens the liberal model of universalist citizenship characteristic of modern constitutionalism. This situation in turn raises the possibility of domination, whereby participants in a policy area can make decisions that adversely impact on those excluded or exempted from it, without having to consult the preferences or interests of these outsiders (Eriksen, 2018). Moreover, the contrary may also occur, whereby the domestic decisions of those outside a policy area arbitrarily undermine the decision-​ making of those inside it. Though var ious for ms of DI have always existed (Schimmelfennig, 2014), both proponents and opponents of DI assumed it would erode over time (Kölliker, 2001), with member states converging on the same policies at different speeds (Stubb, 1996). However, the ensuing integration process has disproved this expectation. Instead, post-​Maastricht DI has steadily increased as European integration has extended into core state powers (Genschel and Jachtenfuchs, 2016) of increasing political salience due to their impact on national economic, financial, and welfare policies. Consequently, domestic electorates have become more aware and often more critical of the integration process than before. This growing critical awareness on the part of voters correlates with the increased use of sovereignty DI (Thym, 2016). Indeed, the

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Introduction

Conclusions of the European Council of 26/​27 June 2014 noted that ‘the concept of ever closer union allows for different paths of integration for different countries’, while the leaders of the founding member states responded to the British leave vote by announcing an initiative aimed at more ‘flexible’ integration, recognizing that the ‘one-​size-​fits-​all model simply cannot work’ (Tsoukalis, 2016, p 199). DI even forms one of five scenarios for the future of Europe outlined by the Commission (2017). This continued and expanded use of DI reflects the ways heterogeneity impacts both the economic space for integration and the political willingness of the peoples of these states to integrate further. Rather than seeing DI as a failure to integrate in a uniform way or as confining certain member states to a second-​class status within the EU, we shall argue that it is not only functionally necessary but also normatively desirable given the ineliminable diversity and pluralism of any Union as large as the EU. We relate the resulting need for a flexible Europe to the character of the EU as a demoicracy rather than a pan-​ European democracy in the making (Bellamy, 2019, ch 6). The demoicratic view of the EU takes off from the EU’s character as a Union of states and their respective peoples or demoi, which results in their citizens also possessing certain transnational and supranational EU rights, such as free movement and the right to elect members of the EP. One way of understanding this arrangement is to see the EU as offering a framework for facilitating cooperation among its constituent states and their citizens in ways that show them equal concern and respect. This framework aims at supplementing rather than supplanting the domestic democratic systems of the member states, so as to facilitate their mutual cooperation. The result is a system whereby the peoples of Europe can ‘govern together but not as one’ (Nicolaïdis, 2013, p 351). Why is such a demoicratic arrangement important? In an interconnected world, individual states confront a functional and a moral challenge (Bellamy, 2019, pp 4–​6). Functionally,

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globalization has weakened the capacity for nation states to frame independent socio-​economic and security policies. Democratic decision-​making at the national level either cannot fully address, or can be partially undercut by, transnational processes, such as cross-​b order financial movements; international activities, such as those of criminal, terrorist, or business groups; and certain democratic decisions of other countries, such as the lowering of corporate taxation or the weakening of environmental controls. In these cases a process, organizational activity, or policy originating in one or more states can have effects upon and operate across many other states. To differing degrees, depending on the policy concerned and the capacity of the state involved, all states need to cooperate with other states through international legal frameworks and organizations in order to regulate many transnational political, economic, and social processes and activities effectively and to provide adequate systems of defence and policing. Morally, globalization and its international regulation raises the cosmopolitan challenge to treat all individuals as moral equals, regardless of where they live or come from. The moral case for democracy rests in part on the role it plays in ensuring the laws and policies that govern citizens treat them with equal concern and respect, by responding to their preferences and interests through an electoral process based on one person, one vote. However, as we noted, in an interconnected world the democratic decisions of one state can impact on those of another or be undercut by transnational processes. In regulating their interactions and these processes, democratic states confront a dual moral requirement –​that these regulations should be mutually acceptable to each other, on the one hand, and to their respective citizens, on the other (Pettit, 2012). In other words, the representatives of these states must agree as equals to the terms of their cooperation among themselves and have these agreements in their turn agreed to through their domestic democratic systems by their respective citizens. At the same time, the resulting framework itself gives

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individual citizens of all the states a collective interest that it should treat them with equal concern and respect, regardless of their member state. Therefore, meeting the functional and moral challenges requires a delicate balancing act between the functional need to collaborate, on the one side, and the moral requirement to respect the equal right to self-​determination of the collaborating peoples, on the other –​while all the time treating all the citizens subject to the overarching legal and political framework that results from this cooperation, regardless of their state, as equals with regard to its rules (Cheneval, 2008). Demoicracy offers a way of responding to this trilemma by seeing organizations such as the EU as involving both intergovernmental bargaining among the elected executives of states, each of whom represents their respective demoi, and a direct voice for all citizens of the resulting framework as a trans-​and supranational demos (Bellamy, 2019). It might be considered that a neater solution would be offered by uniform integration within a federal arrangement that shifts democratic authority with regard to areas of EU competence upwards to the European level, so that EU decision-​makers are directly authorized by and accountable to EU citizens as a whole. Demoicrats raise two objections to this scenario. First, they contend the already existing forms of democratic life established within the various member states have moral worth for their citizens and that a moral loss would be incurred through their absorption within a more unitary and hierarchically ordered EU federation (Nicolaïdis, 2012, p 260; Bellamy, 2019, p 21). Second, they consider this proposal as minimizing the heterogeneity of the component parts. Not all socio-​economic systems can be easily integrated on equal terms with each other, nor can all political and cultural systems. As domestic democracies containing diversity stemming from multiculturalism and minority nationalism have discovered, the ideal of uniform integration tends to ignore issues of privilege and disadvantage in ways favouring

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the dominant groups (Young, 2000, pp 216–​21). To overcome such issues, forms of differentiated governance, which allow for the asymmetric devolution of powers to self-​governing localities alongside differentiated legislation offering certain groups special rights, become inevitable as ways to show equal concern and respect to diverse, and especially disadvantaged and discriminated, groups of people (Kymlicka, 1995; Young, 2000, pp 221–​8). Flexible Europe reflects a similar logic. As we show in Chapters 1–​3, such flexibility reflects a commitment to the equal rights and pluralism that provide the rationale for democracy –​a commitment that as a matter of consistency involves equal concern and respect for the rights and pluralism of all peoples, and hence an acknowledgement of the need for them to cooperate on fair terms with each other. The normative dimension DI and the idea of flexible Europe possess a normative as well as a pragmatic justification, therefore. DI results from moral demands related to different forms of diversity. However, as we detail in Part I of this book, these normative demands also place constraints on the kinds of DI that can be considered as fair or democratically legitimate. Moreover, as we seek to show in the empirical analysis in Part II, these normative justifications matter to, and are to a large extent shared by, key party-​political actors from across the EU. Why do these normative assessments and perceptions matter? First, the EU places non-​discrimination, justice, equality, and solidarity, on the one hand, and democracy, the rule of law, and rights, on the other, among its core values, while being committed to tolerance, pluralism, and diversity (Articles 2 and 3 TEU). Second, if DI is perceived as unfair and undemocratic, it will not generate the support it needs to work and might even foster rather than propitiate Euroscepticism. Examples include the institutional power imbalances between ‘ins’ and ‘outs’ in the Eurozone, or the demands creditor states have imposed

14

Introduction

on debtor states in the context of the Eurozone crisis. Third, an unfair and undemocratic institutional design of DI will also fail in its purpose of reconciling member states that want to integrate to different degrees, and at different speeds. The worry will arise that it produces a fragmented EU, lacking the diffuse reciprocity and solidarity required for states to cooperate over a range of policies. Governments will seek to cherry-​ pick with whom and for what purposes they are willing to cooperate at the EU level in order to maximize the benefits and minimize the costs of EU integration for their member state. Such attitudes risk undermining the equity and efficiency of the EU, and might even lead to a two-​tier EU of rich and poor states, and allow the domination of the latter by the former. Fourth, DI can also contribute to creating new divisions, as the Eurozone and the migration crises and their management measures have shown. Indeed, one could say that DI itself is an expression of new divisions in the EU (Michailidou and Trenz, 2018), and entails a given conception of the EU. When and for which policies DI is thought acceptable, by and among whom and on what grounds, with which distributional results as to the costs and benefits of membership and decision-​ making, are all questions that involve a notion of the ‘nature of the beast’. There are different ways of designing DI, and different institutional designs involve different notions of fairness. Though DI may seem a way of de-​politicizing highly political questions, it proves ‘a deeply political process and a way of relating to conflicts. There are winners and losers, and outcomes often reflect prevailing power constellations rather than efficient solutions to policy problems’ (Fossum, 2015, p 799). Therefore, fair design in DI matters. We address these normative issues from a theoretical perspective in Chapters 1–​3, that form Part I of this book, and empirically through the analysis of interviews on these topics with political actors in Chapters 4–​7, that comprise Part II. Chapter 1 looks at both the procedural fairness of the processes by which particular forms of DI are agreed

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upon and subsequently governed, and the substantive fairness of the distributions of burdens and benefits associated with participating in a given policy. We shall argue that DI can be so designed as to meet the demoicratic trilemma noted earlier, thereby supporting a fair scheme of cooperation between member states, on the one side, and among their citizens, on the other, both domestically, at the state level, and trans-​ and supranationally, at the EU level. To achieve this result, DI must meet certain substantive and procedural criteria. Substantively, DI must be a Pareto improvement, that makes no other member state(s) worse off than they currently are under the status quo –​that is, before either DI, or either a new policy or accession by a new member state that triggers DI, has arisen; and avoids creating negative externalities that diminish the securing of public goods and common resource pools. Procedurally, DI must be mutually agreed by the representatives of both member state peoples and EU citizens; and governed in a way that involves consultation with those not included and offers a clear pathway for them to join in the future. We claim such a form of fair DI avoids the dilemmas of fragmentation feared by its critics. Chapter 2 moves from justice to democratic legitimacy. Some critics fear DI may give rise to domination. We acknowledge this concern, but argue that in certain circumstances democratic norms might also require DI to avoid domination. Democracy reduces the risk of domination by curbing the possibility of arbitrary rule and increasing the likelihood that rulers will address the common interests of the ruled and treat them with equal concern and respect. However, to possess these qualities, all citizens must have a roughly equal stake in the package of policies that are to be decided collectively, and share a public sphere in which they can collectively deliberate on the basis of shareable reasons (Miller, 2009). When one or other condition does not obtain, then either the equity or impartiality of democracy will be impaired by what we call respectively the proportionality and partiality problems. In

16

Introduction

these circumstances, democracy may itself become dominating by involving a ‘tyranny of the majority’ (Christiano, 2010). We argue that DI can be warranted as a way of avoiding this result by involving in a given policy area only those with either an equal stake in it or who conceive of themselves as a public capable of expressing commonly avowable reasons with regard to it. The logic of DI in this regard follows that of schemes for multicultural citizenship and minority national self-​government within many states (Young, 1989; Kymlicka, 1995), including some EU member states. However, Chapter 3 notes that such arguments entail the acceptance of pluralism and a commitment to the core components of any constitutional democracy: free and fair elections, equal civil and political rights, and judicial independence and the rule of law. As such, demoicratic arguments for DI cannot be legitimately recruited in support of democratic backsliding, as the current governments of Hungary and Poland have attempted to do. Instead, such member states become liable to measures we term ‘value’ DI, whereby they can be temporarily excluded from certain decision-​making processes and substantive policies until such time as they embrace and institutionalize democratic norms. The views of party actors We complement these purely normative arguments with empirical research on how far they are shared by party political actors. Here we explain why we chose to focus on party actors, and how we devised the semi-​structured interviews and survey we used to explore their views. We then briefly summarize Chapters 4–​7 that form Part II of this book, noting how Chapters 5–​7 parallel the topics and analysis of Chapters 1–​3. First, even though the era of mass party politics is behind us, political parties continue to play important normative and representative roles in contemporary democracies. They are crucial in offering electorates alternative policy proposals

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and create representative links between citizens and decision-​ making by providing the leading figures in both government and opposition (Goodin, 2008; White and Ypi, 2016; Turnbull-​Dugarte, 2020). Furthermore, political parties not only reflect the views of electorates, but also contribute to shaping them (Hobolt, 2007; Steenbergen et al, 2007; de Vries et al, 2011). In short, political parties define the terms of political debate. Second, analysing parties’ views allows us to capture the political dimension of DI. While existing academic works on DI have tended to present it is a pragmatic and presumably uncontroversial solution that governments adopt to deal with increasing heterogeneity (Malang and Holzinger, 2020, pp 733–​44), this approach underestimates the extent to which DI is itself political and divisive (Fossum, 2015, p 799). Political actors from different countries and different sides of the political spectrum may hold very different views of DI, depending on whether they consider themselves winners or losers from its implementation, and how it interacts with their political ideology and national background. Analysing the views of governments on DI is unlikely to capture this political dimension because government participation in EU decision-​making can lead a party to ‘suppress’ its EU position (Turnbull-​Dugarte, 2020, p 903), making DI appear less divisive than it actually is. Third, like any other legal-​institutional settlement, DI depends on social, political, and economic factors. It would be an analytical overestimation to assume that legal-​institutional assessments alone provide a full picture of whether DI can be sustainable long-​term (Thym, 2016, p 18). Instead, law and institutions interact with broader social processes which influence the perceptions of political actors. Whether or not DI is legitimate must include an assessment of how the relevant political actors perceive it, given these perceptions may influence their appreciation of the legitimacy of DI independently of any of its actual effects. While their views

18

Introduction

may not always be fully accurate, or display only a partial understanding of the rules regulating DI, they nonetheless reflect key concerns that actors have. In other words, by focusing on party actors’ perceptions we do not ignore the actual legal-​institutional settings of DI. Rather, we suggest that they be ‘supplemented by perspectives on how this concept is played out in practice’ (Adler-​Nissen, 2011, p 1099). One way of getting at party actors’ perceptions lies in a ‘subjectivist’ approach (Crotty, 2003; Kröger, 2018), whereby their views become the analytical focal point. This can be particularly well achieved through interviews, as they are uniquely well-​suited for studies focused on ‘meaning-​making’ (Schwartz-​Shea and Yanow, 2012, p 46). Semi-​structured interviews enable the researcher to develop an in-​depth understanding of ‘the knowledge, experience, and perspectives of research subjects’ (Kelly, 2010, p 309). Providing thick descriptions of actors’ views that emerge from the analysis of interviews does not imply that nothing can be explained. However, such an explanation is limited to the particular time and space, so that generalizations must be avoided (Bevir and Rhodes, 2006). Some might suggest that one should study party manifestos instead or in a complementary fashion. However, this is rendered impossible by the absence of more definite party policies on DI in the abstract. While parties do have positions on concrete salient policies which are differentiated, such as the Euro or Schengen, they tend not to have positions on DI as an abstract principle. As a result, opting for an exploratory research design and speaking with party actors directly was the most meaningful as well as potentially the only possible way of exploring their views. We conducted 35 semi-​structured interviews with party actors in seven EU countries (Austria, Denmark, Germany, Greece, Hungary, Portugal, and Romania). These countries were selected because they vary on a number of dimensions, including wealth and geographical positioning within the EU, which may be expected to influence views of European

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integration in general as well as their views of DI in particular. Thus, they constitute a purposive (rather than representative) sample, aimed at maximizing diversity of viewpoints and understandings (Williams, 2019, p 54). For each country, we contacted all parties scoring above 5 per cent in the most recent national and EU elections, considering this would allow us to include most relevant actors. Casting this relatively wide net also provided us with a suitable amount of ideological variation (both in terms of left/​r ight positioning and pro/​a nti-​EU views), another factor which may be plausibly expected to influence how parties perceive of DI (Leruth, 2015, p 817). Our respondents were MPs (usually members of the European Affairs Committee of their national parliament), MEPs, and EU affairs advisors of parties. For each party, we sought to speak to two actors, however, this was not always possible (details available in Appendix A). Interviews were conducted online or over the phone between March and June 2020 (interview guidelines in Appendix B).2 Using NVivo, interview transcripts were read and subsequently manually coded, using codes we had developed prior to the interviews as well as new ones which emerged from the material. Common arguments and patterns were identified, and similar views brought together under relevant thematic headings. The material on party actors’ views of DI presented in Chapters 5–​7 of the second part of the book parallels Chapters 1–​3 of the first part. However, we begin in Chapter 4 by detailing the more general views party actors hold of DI. This chapter engages with the broader literature on political parties and European integration and examines how far, if at all, the views party actors have of DI relate to the established party cleavages over the EU. As we shall see, a key cleavage proves to be not ideological differences but the contrast between richer and poorer member states. A main finding from this chapter is that DI divides party actors, generating both pragmatic and normative support and opposition. Whereas supporters focused

20

Introduction

on DI, allowing integration to proceed even in the absence of consensus and as a way of accommodating heterogeneity, opponents viewed it as a threat to the EU’s efficacy and to key principles of solidarity, equality, and unity. The two dimensions that seemed to affect actors’ views were the wealth of their respective member states and prior experience of DI. By contrast, party family did not seem to influence views on DI significantly nor did EU positioning and positioning on DI necessarily correlate. We return to the cleavage between richer and poorer states in Chapter 5, where we discuss how party actors relate to the issue of substantive fairness. The evidence presented here indicates that respondents from poorer and richer states relate differently to issues of fairness in DI. As regards widening, interviewees from poorer member states were favourable to DI that acknowledged and accommodated their different capacities, while we found no evidence of richer member states either opposing exceptions or supporting exclusions. By contrast, so far as deepening is concerned, we found many similarities in the arguments brought forward by richer and poorer member states. The only exception was that almost all actors from poorer member states expressed opposition to enhanced cooperation that made some member states better off, but left other member states worse off, while only a very few from richer states did so (although hardly any explicitly supported it either). Chapter 6 addresses the democratic dilemmas of DI as perceived by party actors. Like previous chapters, this chapter confirms that it is not so much ideological preferences that drive actors’ assessments of DI as the rich–​poor cleavage. Along these lines, interviewees from poorer member states were more likely to consider capacity DI as a form of arbitrary exclusion than their counterparts from richer states. However, most party actors from richer and poorer member states alike viewed sovereignty DI positively, as a legitimate means of accommodating differences and preferences

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concerning integration. Party actors were also adamant that a differentiated policy should remain open for all to join, based on clear criteria. Most also believed that the current voting arrangements in the EP and Council were broadly acceptable, with only member states taking part in a policy being able to vote in the Council (albeit in consultation with non-​participants), and all MEPs voting in the EP. Finally, Chapter 7 turns to how party actors think of democratic backsliding and its potential links to DI. In this chapter we complemented our interview data with a short survey of 42 party actors to gauge their views on democratic backsliding. For this survey, we contacted both our original interviewees (25 of whom agreed to take part), as well as additional respondents from our selected countries. Most actors perceived democratic backsliding to be a serious issue and worried about its potential implications for the effectiveness and democratic legitimacy of the EU. The views of party actors differed regarding the connection between DI and democratic backsliding. While in the interviews, few suggested that differentiated integration could facilitate democratic backsliding, respondents in the survey were significantly more likely to consider that DI could enable it. However, it is also worth noting that both interview and survey respondents were sceptical of accepting DI in areas pertaining to Article 2, suggesting that the problem was less with DI itself than with how it was being used to justify dubious practices. Most respondents thought the EU could and should act against democratic backsliding, and suggested a variety of possible measures it might take. We conclude by offering a balance sheet of the benefits and risks associated with DI as well as some reflection on future research on DI and political action relating to it. As we hope to have shown, the flexibility associated with DI is fair when it is motivated by, and designed in ways that are consistent with, democratic norms of equal concern and respect. Indeed, within a heterogenous EU, some DI is likely to be a requirement of

22

Introduction

fairness. So conceived, it enables a fair system of cooperation between the states and citizens of the EU that promotes the qualities of mutual recognition and non-​domination. As such, it makes it possible for the EU to provide a form of unity consistent with the diversity member states. However, DI proves unfair, and undermines both solidarity and democracy, when it circumvents these democratic norms. In these cases, therefore, it ought not to be allowed.

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PART I

Normative Perspectives on Differentiated Integration

ONE

Differentiated Integration as a Fair Scheme of Cooperation

The Introduction revealed how DI has pragmatic and normative virtues: it helps European integration to proceed through widening and deepening, and facilitates the accommodation of divergent national capacities and preferences. However, allowing such institutional diversity raises the question of whether DI will yield a form of EU cooperation all participants could find mutually acceptable. This chapter argues that DI plays a role in fairly combining three levels of cooperation within the EU: national cooperation between citizens within each of the member states, international cooperation between member states, and supra-​and trans-​national cooperation among EU citizens (Sangiovanni, 2013, p 217). DI operates most straightforwardly in rendering international cooperation consistent with different forms of national cooperation. Yet, in so doing it may detract from supra-​and trans-​national cooperation. This chapter explores these tensions and proposes how they might be resolved. We consider DI from the perspectives of political justice, or procedural fairness, and social justice, or substantive fairness. If procedural fairness concerns fair participation within, and the legitimate exercise of power by, the political institutions of the EU; substantive fairness concerns the just distribution of social and economic goods, such as income and opportunities. Following Rawls (2001, pp 6, 15), we see impartiality and reciprocity as core norms of both kinds of fairness. We shall argue that while DI can be a source of unfairness, it can also

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facilitate forms of cooperation consistent with these norms by accommodating diversity. However, Rawls distinguishes international cooperation among state peoples from national cooperation among a state’s citizens, with fairness in the former case involving far thinner commitments than in the latter. This distinction proves pertinent to the EU, which has been viewed as both an intergovernmental association of member states (Moravcsik, 1993, p 480), in which states remain ‘masters of the treaty’, enjoying preeminent decision-​ making power within the EU and political legitimacy for their citizens, and a supranational polity in the making, providing individuals with a range of supranational and transnational rights as European citizens (Haas, 1958, p 16), and to some degree shares elements of each (Kröger and Friedrich, 2013). That suggests a possible conflict may arise, whereby DI that seems acceptable from a statist and intergovernmental perspective, to support cooperation at the national level, would be unacceptable from a supranational perspective, focused on fair cooperation among all EU citizens, and vice versa. Adopting a demoicratic account of the kind outlined in the Introduction, we argue this conflict can be overcome through member states balancing their obligations to each other in ways that allow them to fulfil their obligations to their own peoples or demoi, on the one hand, and to the demos of EU citizens, on the other. On this account, DI can be defended to the extent it enables member states with heterogeneous political and socio-​economic systems to cooperate in ways that facilitate their meeting both their domestic and EU commitments. The chapter proceeds as follows. The next section draws on John Rawls’ accounts of justice as fairness between (1999) and within (1971) states, to distinguish the requirements of procedural and substantive fairness between peoples, on the one hand, and among individual citizens, on the other. Whereas intergovernmental accounts of the EU tend to adopt the first, statist, view of justice; supranational accounts tend to adopt a more cosmopolitan version of the second view, that regards the

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DI as a Fair Scheme of Cooperation

demands of justice among EU citizens as being similar in kind to those among citizens of a member state. As we shall see, an EU conceived as a fair scheme of cooperation among states places fewer constraints on the legitimacy of both sovereignty and capacity DI than an EU conceived in terms of individual citizens. However, the following section argues these two positions can and should be combined. Developing demoicratic accounts of the EU (Cheneval and Schimmelfennig, 2013), we argue that the EU is best conceived as a contract between both the demoi of the member states to mutually regulate their interactions in fair ways, and their individual citizens, who together form a demos at the EU level with a distinct interest in ensuring supranational institutions and transnational rights operate fairly with regard to EU citizens. As a result of this dual contract, EU integration ought not to diminish the ability of member states to function as fair schemes of cooperation among the citizens of their respective demoi. Sovereignty and capacity DI may in certain cases support that objective for a given member state, but would be fair only if they did not at the same time diminish the ability of other member states to provide a similar scheme of fair cooperation for their own citizens. At the same time, though, the EU also operates as a scheme of cooperation among EU citizens of a supranational and transnational kind, at least in those policy areas where member states have integrated. In this case too, member states have a duty not to diminish the fairness of the scheme of cooperation among citizens at the EU level. However, there is a similar duty on the EU not to impair the fairness of the different schemes within each of the member states. As we shall see, DI can under certain conditions also help achieve this balance. Two views of differentiated integration as a fair scheme of cooperation Following John Rawls’ (1971) seminal account of justice as fairness, we shall understand a fair scheme of cooperation as

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one in which the main political and social institutions are regulated by publicly recognized procedural and substantive rules which the cooperating parties accept that all can and should abide by as appropriate ways of treating them as free and equal (Rawls, 2001, pp 5–​6). Two sets of ideas that prove important for both the justification and assessment of DI underlie Rawls’ account. First, to be generally acceptable these rules need to be impartial in two respects. They must acknowledge that people can pursue a plurality of reasonable conceptions of the good and not be partial to any one of them. They should also acknowledge that people might have numerous physical, mental, and social advantages and disadvantages for which they are not responsible, so that fair rules should abstract from their natural endowments and social position (Rawls, 2001, p 15). Second, fair rules of cooperation involve an idea of reciprocity, whereby all who do their bit, as the rules require, should benefit to an agreed standard (Rawls, 2001, pp 6, 49n14). We shall argue that DI will only be fair to the extent that it can be justified as consistent with, and to some extent even required by, such norms of impartiality and reciprocity. As well as the central role of fairness within Rawls’ theory, two other features of his account make it an appropriate starting point in this context. First, he portrays his account as reflecting the core values underlying the public culture of a democratic society (Rawls, 2001, p 5), such as those to which the EU is formally committed in Article 2 TEU. Second, he makes a distinction between fairness among different state peoples (1999), on the one side, and among citizens of a state (1971), on the other. While many philosophers of global justice contest the validity of this distinction, it captures the dual character of the EU as a union of states and citizens. Accordingly, the rest of this section explores the fairness of sovereignty and capacity DI from each of these perspectives, starting with a statist/​intergovernmental view and then turning to a more supranational/​EU citizen view.

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DI as a Fair Scheme of Cooperation

Fairness among states: a statist intergovernmental perspective

Although there are variations among statist positions, all concur in regarding membership of an association with the characteristics of a state as providing a necessary context for considerations of fairness of an egalitarian nature to apply (Blake, 2001; Nagel, 2005). A state can be defined as possessing jurisdiction and control, backed by coercion, over resources, people, and goods within the borders of a given territory, and the right to control and defend those borders. Its key characteristics consist in providing a system of common rules, policies, and goods for those individuals living within its borders that make possible and facilitate their mutual interaction and flourishing. Moreover, these common rules, policies, and goods can be seen as in large part the product of cooperation among the members of the state, and would not exist without their efforts. Given nobody could be said to have an entitlement to them prior to the forms of cooperation that brought them into being, and all have a shared interest and roughly equal stake in them, fairness suggests a presumption in favour of their equitable distribution and control (Sangiovanni, 2007). Rawls (1971, pp 3–​5) proposed his two principles of justice as appropriate impartial rules of procedural and substantive fairness for such a scheme of reciprocal cooperation. The first principle seeks to guarantee each citizen an equal right to the most extensive system of basic liberties compatible with a similar system for all; while the second principle seeks to guarantee equality of opportunity and to allow inequalities only in so far as they benefit the least advantaged –​the so-​ called difference principle (Rawls, 1971, pp 60–​1). Rawls saw his principles as addressing not simply the forms of intense institutionalized cooperation to produce collective goods typical of a state, but also involving the shared culture and practices through which members of a state come to identify as a people through a history of multiple iterations of collective

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self-​determination. He prioritized political over social justice, seeing fair procedures as allowing different peoples to co-​author and legitimize the various socio-​economic rules to which they were subject. Rawls’ concern to allow for a plurality of conceptions of the good applied to different peoples as much as to their individual members (Rawls, 1999, pp 34–​5). Consequently, he contended that international fairness differs from domestic fairness and applied to the relations between the free and equal peoples of states rather than free and equal individuals (Rawls, 1999). He considered that international society was even more heterogeneous and plural than most domestic societies, making agreement on shared principles of political justice that could accommodate a plurality of reasonable forms of life and avoid dominating discreet and isolated minorities even harder. As we shall see, these considerations play a role in justifying sovereignty DI. Rawls also believed the extent and degree of interaction among individuals at the global level was insufficient to generate the conditions that might justify a demand for egalitarian principles of justice among them. Most controversially, he regarded peoples as being significantly responsible for the level of wealth they have through the socio-​economic and political choices they have made. Consequently, he thought an egalitarian redistribution between states would be unfair. As we shall see, these considerations play a role in justifying capacity DI. Given states interact, the question arises ‘What fair terms of cooperation would free and equal peoples agree to?’ Rawls contended these terms for the most part would be fairly minimal (Rawls, 1999, p 37). Procedurally, he thought peoples should honour basic human rights and respect the freedom and independence of other peoples by observing a duty of non-​intervention, contracting Treaties on the basis of free and equal agreements, and observing their duly undertaken obligations. Substantively, he argued states only have a ‘duty of assistance’ to aid ‘burdened’ societies that were unable to

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DI as a Fair Scheme of Cooperation

realize principles of justice for their peoples. Conceivably, this argument could support global action to secure ‘morally mandatory’ goods by tackling dire global poverty and catastrophic climate change. However, as we noted in the Introduction, while there might be a duty to act in these areas, that need not involve an obligation to create some form of global governance –​voluntary cooperation suffices. States could even act independently in ways that credibly address these issues but accord better with their resources and political culture than participation in a collective policy might do. Nothing in this argument rules out the possibility of states voluntarily cooperating in more intensive ways, as in the EU. However, Rawls feared a federal EU would come at the moral cost of undermining the distinctive political cultures of the various member states and, given he thought a deep European political culture unlikely, erode social solidarity (Rawls and Van Parijs, 2003). Nonetheless, a more intergovernmental conception of the EU might avoid Rawls’ fears and be consistent with the normative assumptions underlying Rawls’ Law of Peoples. On this account, to be procedurally fair the EU would need to remain a voluntary association of democratic states, the terms of which were mutually agreed between the elected representatives of their peoples and with their ongoing consent. Meanwhile, substantive fairness could allow member states to cooperate to generate certain club goods where that seemed mutually beneficial, and to split the costs and benefits on the basis of their contribution. However, no member state would be obliged to either join the EU or belong to any of its clubs or help other states to do so. Moreover, while all member states might have a moral obligation to support those public and collective pool goods necessary to uphold basic rights, they would have no such duty to do so within the context of the EU (Christiano, 2012, pp 388–​90). Needless to say, this conception of the EU allows considerable sovereignty and capacity DI as consistent with, and even required by, both procedural and substantive fairness.

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Statist intergovernmentalism and differentiated integration

A case can be made for treating certain central features of the EU as consistent with Rawls’ peoples-​centred view. After all, the Treaty echoes Rawlsian terminology in seeking an ‘ever closer Union among the peoples’ of Europe’ (Article 1, emphasis added). While that aim has been read as implying their ultimate merging into a single European people, it could be as plausibly understood as merely involving their greater association so far as that enhances their mutual peace and prosperity (Article 3). As Article 5 TEU insists, the EU’s competences are limited to those conferred upon it by the member states in the Treaties, and while Article 4 obliges them to abide by their resulting obligations in a manner consistent with ‘the principle of sincere cooperation’, it also commits the Union to respecting their equality ‘as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-​government’. Seen in the light of these articles, the EU can be viewed as a voluntary association of sovereign states (Bellamy, 2019). Even if there is no compulsion to join the association, however, it might still be thought a requirement of doing so that all member states should have equal rights and duties. That constraint certainly rules out some forms of DI. Nevertheless, we shall argue it need not render all DI procedurally and substantively unfair. Procedural fairness requires impartiality towards the different ways of life of the peoples involved. As such, it dictates that the terms of the association be approved by the citizens of each member state according to domestic constitutional norms and be consistent with those norms unless these are explicitly changed via a legitimate domestic process. These conditions govern not only accession to the EU and any changes to the Treaties but also withdrawal under Article 50, as was the case with the UK. That suggests the possibility of sovereignty DI, at least in principle, if a member state believes it infringes certain fundamental constitutional structures or lacks popular

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DI as a Fair Scheme of Cooperation

support. It can also allow member states whose peoples wish to integrate further than some other member states desire to do so through enhanced cooperation. Yet, if the rationale behind these stipulations is to ensure that membership of the association does not diminish the self-​determination of the people of an associated state without their consent, then any decision by some member states to integrate either less or further than others should be governed by a similar constraint that it does not diminish the self-​determination of the peoples of these other states, for example by producing negative externalities that might undermine the decisions of either the cooperating or opting out member states to secure certain public or common-​pool goods. Opt-​outs have hitherto arisen during treaty negotiations. While a member state can use its veto to negotiate non-​ participation, these opt-​outs require the agreement of all other member states thereby treating the self-​determination of all associated states with equal concern and respect. Additionally, as we argue in Chapter 3 and is affirmed by the Copenhagen criteria for membership and Article 7, no government should be allowed to invoke sovereignty DI to diminish the self-​determination of the people they represent. Meanwhile, enhanced cooperation in any new policy area should remain subject to the broader EU framework and be overseen for compliance by bodies, such as the Council and the EP, involving the entire membership of the association. In that way, non-​participants can guard against it having a negative impact on their self-​determination in going beyond the Treaty framework. Meanwhile, those states temporarily excluded for capacity reasons ought to have the ability to signal concerns about decisions that might render their joining prohibitive for the foreseeable future. Substantive fairness and considerations of reciprocity enter here. As we saw, on this view states have no moral duties to form an association if they can fulfil the limited obligations of the law of peoples without doing so. The rationale for joining

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thereby becomes a matter of mutual advantage, with members having no obligation to equalize the positions of states within the association or to distribute any surplus to non-​members. Rather, three less egalitarian criteria for substantive fairness hold. First, the cooperation must be considered a Pareto improvement by each of the participating states, making some better off and none worse off than they would be if they did not cooperate, a condition that can be procedurally buttressed by membership being voluntary and democratically approved by the peoples of all member states. Second, member states must be able to fulfil the ensuing obligations of the association in a reciprocal way, as defined in the case of the EU by the Copenhagen criteria. Third, member states have a duty to assist those they have accepted as members that suffer unexpected losses through membership of the association, and to support those members that, through no fault of their own, prove temporarily unable to fulfil their contractual obligations, especially if the association itself might be put at risk as a result. So far as club goods are concerned, accession to any given club, such as the Eurozone, can be made conditional on meeting certain capacity criteria, while the option not to cooperate could be defended on similar grounds. For example, it would be fair to exclude a state that would be unable to do its bit in supporting the production of a given good, or that would render the club suboptimal for the other participants –​at least until such time as that was no longer the case. It would also be reasonable for a state to decline to join a club that it considers would worsen social justice for its people, even if their involvement would be beneficial to the other associated peoples. Meanwhile, enhanced cooperation by a minority would be fair only if it was considered a Pareto improvement also for those states excluded on capacity grounds. However, it would be allowable for the new club to increase the relative inequality between members and non-​members. Finally, how much DI any member state can practice will be limited by its continued need to fulfil its obligations towards sustaining

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the club good of the association taken as a whole (Article 3 TEU) –​herein lies the distinction between states within and those outside the EU –​with the latter having a distinct Treaty arrangement to the former. What about withdrawal from a club or even the EU as a whole? In both cases, a member state merely has an obligation to honour the substantive undertakings it has made to other club and association members. Finally, with regard to public and common-​pool goods that fall within the EU’s competence, member states have a duty not only not to undermine them but also to take up the slack when burdened member states need assistance to meet their obligations to do so (Kölliker, 2001; Christiano, 2012, pp 388–​90; Lord, 2021). Fairness among individuals: a supranational cosmopolitan perspective

Cosmopolitans dispute Rawls’ distinction between intra-​and inter-​state fairness, and argue that we should apply globally the principles he associates with domestic justice (Buchanan, 2000). They contend individual human beings have ultimate value and each individual human being has equal moral value, with these two conditions applying to all human beings (Barry, 1999, pp 35–​6). Consequently, political institutions should operate so as to treat ‘every human being’ as having ‘global stature as an ultimate unit of moral concern’ (Pogge, 1992, p 49). On this view, the nation state and the exclusive national identity it fosters forms an obstacle to treating all individuals with equal concern and respect. Birth into one state rather than another is morally arbitrary, making discrimination on the basis of nationality as morally repugnant as discrimination on grounds of race or skin colour (Caney, 2011, p 115n3). Therefore, political and social justice should be global in scope, and focused on securing individuals, not state peoples, an equal right to flourish as autonomous agents. Philosophers have invoked two types of arguments to ground this claim. Some appeal directly to the equal moral

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personality of individuals (for example, Caney, 2011). Others concede to statists that universal moral equality only entails egalitarian principles of justice when individuals belong to an institutionalized scheme of cooperation that conditions the lives of individuals in ways that are largely unavoidable and to some extent necessary for them, and is capable of being under their collective control (for example, Moellendorf, 2009). However, they contend that the world economy has created such an institutionalized scheme at the global level, reflected in the development of international trade law and bodies such as the WTO. Meanwhile, related processes of globalization in areas such as security and communications have had a similar impact, gradually altering the situational geography of political and social life. As a result, these cosmopolitans see no reason not to apply similar principles of procedural and substantive fairness to those Rawls advocates for the domestic level to the international level. This second argument has particular force in the EU. With the development of the single market built around the four freedoms guaranteeing free movement of goods, capital, services, and labour, the EU has established a legal and institutional framework that guarantees individual EU citizens transnational rights that the Court of Justice treats as applying with direct effect to them and having primacy over the relevant domestic law within each of the member states. Moreover, all individual citizens also have a set of supranational rights, including the right to vote in elections to the EP wherever they happen reside within the EU. As such, the EU has sufficient state-​like qualities for it to be argued that Rawls’ two principles should apply at the supranational as well as the national level (for example, Van Parijs, 2019); at least (and this proviso is important) in the policy areas where member states have conferred competence on the EU. As a result, procedural fairness should involve giving all individual citizens of the EU an equal influence and control over collective decision-​making at the EU level, while

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substantive fairness should involve the resulting decisions applying uniformly to all citizens across the EU so as to treat them with equal concern and respect, including providing equal opportunities to take advantage of the single market and an egalitarian distribution of the benefits. Nonetheless, as Rawls (1993) argued, within a pluralist society procedural fairness may require a degree of differentiated integration to accommodate relevant differences among cultural and social groups, while the difference principle might justify substantive inequalities that maximize the welfare of the least well off. Supranational cosmopolitanism and differentiated integration

The EU, therefore, can be regarded as having institutionalized ties among individuals that justify treating them with a high degree of procedural and substantive fairness of an egalitarian character of the kind advocated by cosmopolitans. Yet, both sovereignty and capacity DI might be justified nonetheless to accommodate relevant differences among individuals. Procedural fairness might be thought to render sovereignty and capacity DI uncongenial to cosmopolitans, since they give the citizens of different states different political and civil rights with regard to EU policies that might lead to their being treated unequally. Yet, many states –​including several member states –​give special self-​government, representation, and ethnic rights to particular groups for sovereignty and capacity reasons related to considerations of impartiality and reciprocity. Such measures have an egalitarian basis as necessary to allow individuals an equal opportunity to develop and pursue a plan of life consistent with a plurality of reasonable cultural norms (Kymlicka, 1995). As we detail in Chapter 2, the EU seems compatible with sovereignty DI to accommodate the ‘rich cultural and linguistic diversity’ of the Union (Article 3 TEU) and ‘the different legal systems and traditions of the member states’ (Article 67 (1) TFEU and Article 4 (2) TEU), and capacity DI to accommodate the different economic and

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social circumstances of member states, so that the citizens of poorer member states are not disadvantaged through being involved in policy areas that are either irrelevant or would impoverish them. Sovereignty DI in such cases could be procedurally fair if, as formally speaking is largely the case, such moves require the endorsement of the representatives of all other EU citizens. As Chapter 3 argues, different constitutional arrangements would also need to be consistent with the basic individual rights and the principles of democracy and the rule of law, as outlined in Articles 2 and 6 TEU and the EU Charter of Fundamental Rights. Similarly, for capacity DI to be procedurally fair it would need to be guided by the principle of openness and implemented within the existing legal framework, so as to: a) protect the EU’s legal and institutional unity; b) enable the continuous development of the acquis communautaire; c) preserve the prerogatives and powers of the European Commission, the EP, and the Court of Justice of the European Union (CJEU) so as to ensure established mechanisms of scrutiny; and d) avoid a split between ‘ins’ and ‘outs’. Indeed, these principles inform the mechanism for enhanced cooperation, which must respect the objectives, values, and legal integrity of the Union, involve at least nine participants, so as to prevent too much fragmentation within the EU, and seek to ‘promote participation by as many member states as possible’ (Article 328 (1.2) TFEU). This last element also proves important for the substantive fairness of DI on this account. Sovereignty DI would not be substantively acceptable if its aim was to avoid contributing to collective policies that raised the welfare of the citizens of the least well-​off states or had the sole purpose of giving the member states involved a competitive advantage vis-​à-​vis other member states. Yet, capacity DI could be substantively fair as a transitional exclusion or opt-​out to allow an enlargement of the EU to new member states so long as it was aimed at levelling them up to full membership. Enhanced cooperation among

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wealthier states could also be justified as an interim measure (as per Article 20 (2) TEU) in terms of Rawls’ difference principle if it: a) created a surplus that was larger than would be the case if all member states were involved; b) this surplus was redistributed so as to improve the welfare of the poorer and less well-​developed member states more than would otherwise have been the case; c) the excluded were supported so as to be able to join the common policy area eventually; and d) the common policy areas of the EU still operate in the equal interests of those involved and retain their integrity, without distorting competition or introducing new forms of discrimination (points insisted in Article 326 (2) TFEU regulating enhanced cooperation). Of course, such policies are only targeted at individuals indirectly, via the likely location of the richest and poorest citizens. Yet so is much domestic policy. Demoicracy: combining statism and cosmopolitanism? Although supranational cosmopolitanism potentially allows for more DI than some contend (Eriksen, 2018), it is nevertheless more limited than statist intergovernmentalism would permit. Procedurally, statism prioritizes decision-​ making within and between state peoples over that of EU citizens; while substantively it constrains redistribution from wealthy to poorer states that would make the former less well off than they currently are. However, we have noted how the EU combines elements of both. Take procedural fairness. On the one hand, the EU respects the equality of member states, their territorial integrity, distinct national identities, and political and constitutional traditions (Article 4 TEU), with the competences of the EU governed by the principle of conferral and explicitly under the control of the member states (Article 5). On the other hand, the EU bestows a distinct set of rights on the individual citizens of the member states through the status of citizenship of the Union and the Charter of Fundamental Rights of the European Union, including voting rights in a

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common political institution, the EP. It is also committed to a principle of non-​discrimination on grounds of nationality so far as the application of the Treaties is concerned (Article 18 TFEU), a provision many consider requires the uniform application of European law –​not least the CJEU. The same applies to substantive fairness. The EU is ambivalent as to whether it provides for equality and solidarity among state peoples (for example, Article 3 TEU), with solidarity limited to a duty of assistance to deal with terrorism and natural and man-​made disasters (the ‘solidarity clause’ Article 222 TFEU); or among individual EU citizens (Article 2 TEU), of an explicitly cosmopolitan character (Article 21 TEU). How coherent or desirable is this mix? The dual character of the EU as a union of states and individuals has been standardly resolved by regarding it as a multilevel system, in which member states create a supranational union with competences in specific areas that operate transnationally across all of them –​notably the single market and customs union. However, DI complicates this picture by producing asymmetries among the member states with regard to which EU policy areas they belong to. This section addresses this dilemma by arguing that the EU’s combination of statism and cosmopolitanism can be reconciled and justified from a demoicratic perspective and that DI can support this mix by facilitating forms of procedural and substantive fairness suited to a Union of states and EU citizens. Both pragmatic and principled reasons can motivate this stance. Pragmatically, states remain the main locus of justice for individuals. However, their gradual involvement in an association such as the EU can be regarded as a transitional step, whereby states become agents of a shift towards cosmopolitanism (Ypi, 2008). A demoicratic account can guide realistic action in the present towards a cosmopolitan utopia in the future. However, it might also be defended on principled grounds as a realistic utopia in itself. The International Covenants on Civil and Political and on Economic, Social and Cultural Rights both defend as Article

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1 the right to self-​determination of all peoples to determine these rights. Demoicracy might be seen as building on Rawls’ Law of Peoples to show how in an interconnected world the pluralism secured by self-​determination might nonetheless be part of a scheme of fair cooperation among both peoples and their individual citizens (Bellamy, 2019, pp 14–​15). Fairness among states and individuals: a demoicratic perspective

As Francis Cheneval (2008; Cheneval and Schimmelfennig, 2013) has argued, the demoicratic account departs from Rawls’ pure statism by noting how international associations among state peoples also establish a direct relationship both with and among the individual citizens of these peoples of a supranational and transnational nature respectively. Consequently, an international association involves a contract between both state peoples and the individual citizens of the association. This dual contract combines the statist and cosmopolitan position (Bellamy, 2019, ch 1). It recognizes that states continue to be the main locus of social and political cooperation for most individuals, but that states increasingly interact in ways that an association such as the EU can enable them to mutually regulate so as to maximize the possible benefits and minimize the potential harms that may result from cooperation. At the same time, individuals can benefit from or be harmed by the opportunities or lack of them resulting from cooperation between different states. They may also have interests as members of the association that relate to the impact of supranational decisions and institutions and the costs and benefits of transnational cooperation that are distinct from those interests they have simply as citizens of one of the member states. From this demoicratic perspective, the crux lies in combining procedural and substantive fairness among citizens at the state level with that between peoples and citizens qua members

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of the association at the supra-​and trans-​national levels. Procedurally, statists consider membership of the association must be voluntary, with primary law made by consensus among the contracting member states so as not to undermine national self-​determination. Cosmopolitans, however, consider all individuals qua members of the association should be treated as free and equal, suggesting that once the association is formed the EP should become the legislature, with the Commission replaced by an elected EU government. Demoicrats draw on elements of both views (Cheneval and Schimmelfennig, 2013, pp 242–​3). Like statists they consider the states the masters of the treaties. However, the secondary law needed to implement primary law should be co-​decided by the representatives of state peoples, on the one side, and, as cosmopolitans desire, of their individual citizens qua citizens of the association, on the other, with the Commission a bureaucracy appointed by and serving peoples and citizens (Cheneval and Schimmelfennig, 2013, pp 344–​5). Substantively, statists argue the costs and benefits of the association should be a Pareto improvement for the peoples of the states concerned. States must honour their undertakings in forming the association or a given club, but have no obligation to reduce inequalities between states. The duty of assistance apart, their responsibility is to maximize the social and economic position of the least well-​off of their own people, and to maintain the distinctive institutions and culture that are the source of a people’s wealth (Rawls, 1999, p 108). Cosmopolitans, however, only regard inequalities between states as justified if they benefit the least advantaged citizens within the EU. The long-​term aim should be to build a universal, EU-​wide social welfare system (Van Parijs, 2019). Meanwhile, fair equal opportunity should allow free movement across the EU and access to whatever social as well as political rights are granted to citizens of the member states in which they happen to reside. Again, demoicrats balance the two perspectives. They share the statist concerns that a federal EU not only might

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be incapable of mobilizing the social solidarity required for a welfare system as generous as those found in the richest member states, but also that a moral loss would be incurred with the disappearance of the distinctive social and political cultures of the different European peoples. As an association of state peoples, therefore, the EU should enhance the prospects for peace and prosperity within an interconnected world for all its member states but need not equalize their relative economic standing (Cheneval, 2008, pp 54–​5). However, demoicrats agree with cosmopolitans that as an association of citizens, the EU should grant all individual members of these peoples an equal opportunity to move, seek employment, trade, and live across all the member states of the EU, without discrimination on the basis of nationality (Cheneval, 2008, p 55). Nevertheless, demoicrats contend the interests of mobile citizens need to be balanced against those of sedentary citizens and the different state peoples –​indeed, the opportunity to move and choose between different social and political systems rests on their doing so (Cheneval, 2008, pp 45–​6). Therefore, if free movement diminished the social and political position of the least well off within either a host or a home member state, then certain constraints on the entitlements of mobile citizens might be justified (Bellamy, 2019, p 166). Demoicracy and differentiated integration

As we have seen, both statism and cosmopolitanism can allow elements of sovereignty and capacity DI to accommodate relevant differences arising from political and cultural heterogeneity, on the one side, and, social and economic heterogeneity, on the other. What we wish to suggest is that DI can help can make procedural and substantive fairness among EU citizens at the trans-​and supra-​national level compatible with procedural and substantive fairness among co-​nationals at the member state level and between member state peoples at the international level.

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With regard to procedural fairness, both sovereignty and capacity DI should be agreed either by the representatives of state peoples as a matter of primary law or, as per the ordinary legislative procedure for secondary law, by both a majority within the Council and a majority in the EP, while all legislation should guarantee the entitlements of EU citizens under the Charter of Fundamental Rights of the European Union. Meanwhile, opted out states should have consultation but not voting rights in the relevant policy area. Subject to such constraints, sovereignty DI allows for constitutional and cultural diversity within the EU as per Article 4 TEU and, as with Sweden’s special dispensation regarding snus, can facilitate a member state’s participation within the EU. In the case of enhanced cooperation, it should be subject to oversight by supranational bodies to which member states have conferred this authority. Meanwhile, suggestions that particular forms of DI, notably the euro, might lead to a separate parliamentary assembly for its members, should also be avoided (Curtin and Fasone, 2017). They provide insufficient scope for non-​ members to control what may be adverse knock-​on effects or to ensure that a credible path remains open for them to become members. However, here too consultation rather than voting rights on euro decisions within the Council and EP would be appropriate (Heermann and Leuffen, 2020). With regard to substantive fairness, allowing various forms of capacity DI may increase the willingness of wealthier member states to integrate further and accept the potential costs in terms of insuring against any exogenous shocks. For example, had a capacity requirement been more rigorously imposed on Eurozone membership, delaying the accession of Greece, then arguably member states might have been more willing and able to endorse structural investment rather than bailouts that simply serviced debt. Nevertheless, in clubs possessing the qualities of a symmetric N-​person Prisoner’s Dilemma, demoicrats would wish to prevent states free riding or backsliding by locking in membership and having an independent authority to sanction

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violations. They would also wish to protect core policies that are either constitutive of the association, such as the four freedoms of the single market, or involve public or common pool goods and generate positive externalities or guard against negative externalities (Kölliker, 2001; Lord, 2015.). At the same time, demoicrats seek to uphold the trans-​and supra-​national rights of citizens. However, they note that the individual citizens of the member states have an interest in free movement between states not only for themselves, to take advantage of opportunities in other states on equal terms to nationals, but also to allow non-​nationals to come and enhance the promotion of collective goods of their state. Therefore, demoicrats seek to ensure that both the sending and the receiving state are able to maintain the same level of substantive fairness for their citizens as before. DI may aid that win-​win situation materializing. For example, cosmopolitans argue that transnational substantive fairness creates an egalitarian case for a fair distribution among EU citizens of the surplus generated through involvement in the single market. Some have suggested that this might fund a EU basic income (Viehoff, 2017; Van Parijs, 2019). Yet, statists would see no justification for such an egalitarian redistribution, especially as such a measure risks undermining the capacity for the social systems of the different member states to provide citizens with a wide range of welfare goods –​particularly given the cost of such an EU level scheme risks being very high. Demoicrats agree with statists that social systems should remain differentiated but agree with cosmopolitans that this surplus could be redistributed among member states in ways that benefit the poorer states (Sangiovanni, 2013, p 240). Moreover, all member states could put in place measures appropriate to their distinct social systems to protect and support sedentary citizens for whom transnational mobility either imposes costs or proves costly to take advantage of. For example, member states should be allowed to restrict in-​work benefits to national citizens.

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Conclusion Equality as per the Aristotelian formula involves treating like cases alike and different cases in relevantly different ways. Both sovereignty and capacity DI may support procedural and substantive fairness when they reflect relevant differences, yet be unfair if they involve treating like cases unalike. We have compared statist intergovernmental and supranational cosmopolitan approaches and argued both can accommodate forms of DI for peoples and individuals respectively. However, the two approaches can diverge given that the latter prioritizes EU level decision-​making and redistribution over those at the state level favoured by the former. We have argued for a demoicratic view of the EU, as a union of both state peoples and individual citizens, that combines these two approaches. We have also contended sovereignty and capacity DI can prove useful ways of preserving this balance by fostering a Union in which member states can simultaneously meet their obligations to their own people (Lord, 2015) as well as to EU citizens and the peoples of other member states by not integrating when the latter might conflict with the former. However, a demoicratic perspective raises considerations of procedural and substantive fairness that limit how far DI can go. DI can be regarded as procedurally unfair if it diminishes the exercise by citizens of certain basic political and civil rights at either the state or the EU level, points we explore further in Chapters 2, 3, 6, and 7. Meanwhile, DI can be viewed as substantively unfair if it fails to be a Pareto improvement for all member states compared to the status quo, and diminishes the social entitlements of the poorest citizens within any of them, a point we explore in Chapter 6. Outside these constraints, however, DI may enhance both procedural and substantive fairness by promoting the EU’s aspiration to be united in diversity.

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TWO

Democracy, Domination, and Differentiated Integration

Chapter 1 looked at how DI can either promote or weaken substantive fairness among both member states and citizens, and might be legitimized and constrained by certain democratic arrangements designed to ensure procedural fairness. Here we explore further how democracy may itself justify and require certain forms of DI. As we noted in the Introduction, one motivation for states to join the EU arises from the challenge globalization poses to democratic decision-​making within them. Transnational processes and organizations, such as financial markets and multinational companies, can detract from the democratic control citizens are able to exert from within any single state over the social and economic forces to which they are subject. Likewise, the domestic policies of one state may produce either negative or positive externalities that undercut the contrasting domestic policies of other states. As a result, states become liable to domination by other states or various organizations and networks that operate across them. By cooperating with each other and integrating certain policy areas, states enable their citizens to retain control by placing both their interactions and the operations of various transnational actors under their mutual governance. However, for reasons we shall investigate, these joint arrangements may themselves become a source of domination that DI can alleviate. Domination consists in the ability of one agent or set of agents, such as a state or group of companies, to exercise power

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over another agent or agents in an arbitrary manner, without having to consult and respond to their views and interests (Pettit, 2010, pp 73–​5, 77–​9). Those dominated in this way must alter their behaviour so as to anticipate the possibility of such arbitrary acts, say by attempting to avert them by propitiating their dominators. For example, they may seek to appease a multinational company by offering a beneficial tax regime and so alleviate the risk of their moving elsewhere. The capacity to exercise such arbitrary acts of power arises from inequalities in influence and control between the dominator and the dominated, and a degree of dependency of the latter on the former. Domestic democratic systems reduce the prospects of such arbitrariness. One person, one vote and majority rule provide an impartial process for citizens to exercise equal influence and control over the elected representatives who make the rules and policies regulating their collective interactions, thereby encouraging politicians and officials to frame and implement policies in ways that treat them fairly by showing them equal concern and respect (Dahl, 1989, chs 6, 8 and 10; Rawls, 1993, p 14; Christiano, 2008, ch 3). Within the EU, the risk of domination by either another member state or the supranational institutions of the EU is mitigated through intergovernmental bargaining between the elected representatives of the member states in the Council, on the one hand, and among MEPs directly representing EU citizens within the EP, on the other. This chapter explores how the two forms of heterogeneity that drive capacity and sovereignty DI respectively can also unsettle the qualities of equality and impartiality associated with democracy, rendering even decision-​making according to a process that formally speaking meets democratic criteria to be a source of domination. On the one hand, socio-​economic heterogeneity generates a ‘proportionality problem’ that can impact the equity of democracy. On the other hand, political and cultural heterogeneity can produce a ‘partiality problem’ that impairs the impartiality of the process. Either can weaken

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the fairness of democratic decisions. The most familiar instance of this possibility arises in circumstances associated with the tyranny of the majority over discreet and isolated minorities. The next section of this chapter describes how the likelihood of these conditions arising intensifies the more economically or culturally heterogenous a political community proves to be –​factors that have increased within the EU as it has widened and deepened. However, the section that follows describes how these risks can and have been met through either a consociational process that itself compensates for the proportionality and partiality problems, or by forms of capacity and sovereignty DI, which exclude or exempt certain states from participating in a common EU policy. Indeed, to some degree fairness and the avoidance of domination within the EU rests on the ways these two mechanisms complement each other. The democratic argument for differentiated integration Democracy is standardly defended as offering members of a political community a legitimate mechanism for making necessary collective decisions about which they may disagree by giving them an equal say (the equality argument), on the basis of a common process and criteria (the impartiality argument), to produce decisions likely to treat those involved with equal concern and respect (the fairness argument) (Christiano, 2008, ch 3). However, as we shall show, an equitable, impartial, and fair democratic system proves compatible with some forms of heterogeneity among the decision-​makers but not others. To adopt the terminology of pluralist theorists of democracy, whereas horizontal, cross-​cutting cleavages promote many democratic practices, vertical, segmental cleavages tend to fragment the demos and require more differentiated forms of citizenship and decision-​making of a kind associated with theories of multiculturalism and consociationalism (Dahl, 1989, chs 16–​18). These forms of democracy can be related to a demoicratic account of the EU (Nicolaïdis, 2013).

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The legitimacy of a democratic process based on equal votes, majority rule, and common constitutional arrangements assumes the existence of a demos among whom two types of relations obtain. First, they must possess shared and roughly equal interests in the totality of the collective decisions they propose to take together (Christiano, 2008, p 80). Second, they must conceive of themselves as forming a demos (Christiano, 2008, p 82; Miller, 2009). The socio-​economic and politico-​cultural heterogeneity of the member states unsettle respectively these two preconditions. Their social and economic heterogeneity makes it likely they will have divergent interests in the various co-​operative policies on offer across the EU. Various policies may impose greater costs or yield fewer benefits for some states than for others. It may also be harder for all member states to relate to each other as equals within particular arrangements –​they may often have unequal stakes, which may hinder fair cooperation in an entirely common scheme. Meanwhile, their legal-​political and cultural heterogeneity can give rise to them employing different public reasons and constitutional norms to evaluate these policies. Even if the member states agree at the most abstract level on a number of very general norms, they may reasonably disagree as to their ranking and application to specific cases. The first form of heterogeneity impacts the equity of democratic decisions that fail to accommodate differences of stake in the collective decision, while the second form of heterogeneity can affect the impartiality of decisions that fail to accommodate incommensurable and conflicting evaluative perspectives. Meanwhile both these forms of heterogeneity can undermine the fairness of common rules that do not accommodate relevant differences among those to whom they apply, thereby rendering the democratic process a source of domination rather than a mechanism for combating it. The rest of this section explores three classic political aphorisms guiding the equity, impartiality, and fairness arguments for democracy respectively, noting how heterogeneity raises a problem for

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each that can justify differentiation as to which collective decisions may be taken, among whom, and in what form. As we will show, these arguments offer a demoicratic rationale for capacity and sovereignty DI with regard to the political process to ensure equality and impartiality respectively. As a result, in many cases common policies are unlikely to be fair. To avoid this possibility, either collective democratic decision-​making must be adapted in ways that ensure that any common policies will either be limited to those all can agree upon as being in their shared and common interest, or are framed and implemented in suitably differentiated ways, or some member states should be exempted or excluded from participating in the policy. The first aphorism decrees ‘what touches all should be decided by all’. This aphorism appeals to the equality argument but assumes a roughly equal stake in the relevant collective decision (Christiano, 2008). On this view, if each individual is the best guardian of his or her interests, and the interests of every individual in the polity are equally at stake in the decision, then in fairness all these individuals are entitled to play an equal part in making the decision to ensure their interests are equally taken into account. Therefore, a democratic system based on one person, one vote and majority rule assumes that all involved have a roughly equal stake in the overall package of decisions, if not in each and every one. If that was not the case and a significant group had less of a stake in the generality of collective decisions than most others, an equal vote might lead to the underfunding of public services or the rejection of public regulations on which many people’s well-​being depends. Consequently, a democratic case exists for either so shaping the demos that all those involved do have a roughly equal stake or in giving individuals a vote proportional to their stake, and thereby treating them fairly and with equal respect, if not literally equally in the sense of exactly the same (Brighouse and Fleurbaey, 2010). We shall call this the ‘proportionality problem’.

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Demos-​shaping to create an equal stake among citizens is fairly common within most democracies. For example, most states devolve certain public services to local communities for reasons of fairness as well as efficiency. States are generally heterogeneous: urban areas differ from rural areas, some regions have an ageing population and others a higher proportion of children and young people, and so on. The central state may enforce certain regulations that can be regarded as in the equal interest of all, but there will be a reasonable case for DI in other respects. Demographic and socio-​economic differences can all make the spending priorities of one region legitimately different to another, at least on those matters that impact mainly local residents. A democratic system that allowed, say, urban areas to determine all the policies of rural areas (or vice versa) could be regarded as failing to take account of the unequal stakes citizens had in the relevant collective decisions, so that a disproportionate stake was given to some citizens. The second aphorism holds that ‘for justice to be done, it must be seen to be done’. This aphorism underlies the impartiality argument and the need for democracy to be not only fair but also publicly and demonstrably so. One reason for insisting all have an equal say in collective decision-​making rather than trusting in a benevolent dictator arises from people’s inevitable partiality to their own point of view. Such partiality results from the unavoidable limitations in our reasoning about others, particularly in large societies where the details of most people’s lives are a mystery to us (Christiano, 2008, chs 3 and 6). Even the most conscientious, well intentioned and best informed of us cannot avoid drawing on our own experiences and reasoning in the light of values and facts that resonate with us but may not do so with others. A democratic system of one person, one vote offers a formally impartial system that endeavours to integrate our multifarious points of view and so promote policies that reflect our various concerns and circumstances. Nevertheless, to do so the process must incorporate incentives for us –​ or, more realistically, the

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decision-​makers we elect –​to go beyond a partial perspective and ‘hear the other side’ in ways that move policy-​making towards an impartial consideration of what is in the public interest rather than simply responding to the private interests of various particular groups. To achieve this result, the process must involve a more substantive notion of impartiality, whereby policy-​makers address the commonly avowable interests of citizens by appealing to reasons that are widely shared as suitable criteria for collective decision-​making and justifying decisions in terms of their contribution to the common good (Miller, 2009; Christiano, 2010). Two notions of a public render such an appeal possible. First, citizens must conceive themselves as forming a public in the sense of a demos. In part, that results from their participating in a scheme of social cooperation in which all have a roughly equal stake. In part, it stems from a shared history, culture, and institutions. Second, citizens must share a sense of what count as public reasons, and the ability to reason collectively in public –​notions typically associated with the presence of a shared public sphere, involving a common language and media. Democratic systems that lack these public qualities are likely to allow politicians to play different groups off against each other. It also gives rise to the danger of consistent minorities, in which particular groups with distinctive cultural or other priorities are persistently excluded from collective decisions. These issues create what we call the ‘partiality problem’. Again, many member states contain cultural and national minorities and adopt various types of differentiation when making and applying collective policies to address this problem. These mechanisms standardly take the form of differentiated group rights. Following Will Kymlicka, we can divide these rights into self-​government rights, special representation rights, and poly-​ethnic rights (Kymlicka, 1995). All involve asymmetrical arrangements between regions or groups of citizens. These types of differentiation address the partiality

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problem by seeking to incorporate heterogeneous groups of citizens in a unified public decision-​making process. Self-​government rights involve the devolution of particular competences to certain territorially concentrated cultural or other minorities, as in Scotland or Catalonia; or the ability for such groups to control certain services, such as publicly funded faith schools that are run by particular religious groups. Special representation rights involve giving such groups a guaranteed level of representation to ensure their voice gets heard. Finally, poly-​ethnic rights involve special dispensations from certain general laws for particular groups, such as allowing the slaughter of animals in ways that are otherwise prohibited to accommodate the dietary code of certain religious groups. The third aphorism enters here. Related to the fairness argument, it dictates that democracy involves the ‘rule of law, not persons’. On this view, democracy ideally removes the possibility for arbitrary rule by preventing any person or group of persons from ruling in a wilful and capricious way, without consulting the interests of those subject to their rule (Pettit, 2012). Instead, they must rule by a duly constituted democratic process. Such a democratic process aims at creating incentives to govern as impartially as possible by placing governments under the equal influence and control of the governed, and removable and replaceable by them, making all citizens rulers and ruled in turn. However, that result is only likely if the process is suitably adjusted to take into account the proportionality and partiality problems. Otherwise, the risk arises that the resulting laws may be dominating of certain minorities. A simple account of laws that meet the fairness requirement of the rule of law is that one should have ‘one law for all’. Yet, this simple account turns out to be simplistic. Most people accept that exceptions can exist –​for example, that ambulances may exceed speed limits when rushing a sick person to hospital, even if we expect them to exercise due care and attention when doing so. Likewise, it seems reasonable to look at the heterogeneity of different types of providers of a

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given service when setting and applying regulatory standards. So certain health and safety rules may differ with regard to small and large firms. Similarly, there can be rules designed to benefit specific groups of people, albeit in the interests of fairness, such as regulations aimed at facilitating access to buildings for the disabled. As a result, a more accurate principle of fairness in the case of laws would be the Aristotelian maxim that ‘one treats like cases alike, and unalike cases differently’. Yet, a difficulty arises in deciding when a difference is relevant or not with regard to the policy at hand. We call this the ‘difference problem’. A well-​designed democratic system responds to this problem by allowing different groups within society to ‘hear the other side’ and share the costs and benefits of differential treatment reciprocally (Bellamy, 2007, pp 80–​3). However, we noted earlier how the socio-​economic and political and cultural forms of heterogeneity we have associated with the proportionality and partiality problems effectively create different demoi, making it necessary to conceive how these different groups can govern together but not as one (Nicolaïdis, 2013). Two solutions are standardly proposed to address this problem. On the one hand, corrections for proportionality and partiality can be built into common decision-​making, with the result that the likely decisions will be limited to genuinely common areas or themselves be differentiated. On the other hand, as with capacity and sovereignty DI, particular groups can be excluded or exempted from taking part in the decision. These are not exclusive mechanisms but are often combined, as in the EU. Indeed, to some degree they are complementary, each supporting their respective positive aspects as a way of overcoming domination while counteracting their negative aspects as a potential source of domination. The first option, adopted in many segmented societies, involves the consensus decision-​making typical of consociational democratic systems. Such systems depart from a strict equality of voting weights and majority rule. Rather, they represent

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the various demoi separately in collective decision-​making in ways that give them a proportionate say or protect them from partial views –​usually via mechanisms such as a Grand Coalition at the executive level, mutual veto of policies by the various groups, and a highly proportional system of electoral representation. They also allow a considerable devolution of decisions to the relevant regions or groups, often to different degrees and in different policy areas. Given that economic, cultural, and political heterogeneity within the EU is ‘extreme’ compared to most consociational democracies (Lijphart, 1999, pp 42–​7; Scharpf, 2015, p 395), it is unsurprising that it has adopted a range of similar consensus and super-​majoritarian requirements for treaty making and legislation (Costa and Magnette, 2003; Papadopoulos and Magnette, 2010). For example, these requirements characterize what is called the ‘Community Method’, whereby all decision-​making involves the complex interplay of the European Commission, the European Parliament, and the Council of Ministers, in which Qualified Majority Vote is the standard procedure (Scharpf, 2017, p 236). There are also subsidiarity and proportionality checks by national parliaments (Article 5 TEU). These provide democratic mechanisms for restricting the policies and the ways they are implemented to those most member states can agree as being best decided and organized at the EU level (Kröger and Bellamy, 2016). The difficulty with such arrangements lies in their allowing multiple veto points that can encourage self-​interested bargaining and gridlock. While such blocking measures can be used in legitimate ways, such as to address the proportionality and partiality problems, they can also be used illegitimately as a way of extracting additional resources by less involved states who can up the price of their vote, thereby increasing the transaction costs of collective action and in all likelihood also the complexity, suitability, and fairness of the resulting common measures. As a result, EU decision-​making can be a cumbersome and time-​consuming process, and less than fit for purpose. It also increases the

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possibility for arbitrariness on the part of veto players, and hence for domination. The second option comes in here. Many plural states have asymmetrical forms of devolved power, such that some regions possess the competence to make autonomous decisions in more areas than others –​as is the case with Scotland compared to Wales in the UK, for example. Moreover, these competences are often extensive, and can extend to different legal, health, and education systems and include extensive tax-​raising powers. Capacity and sovereignty DI operate in a similar way by allowing differentiation among member states as to whether or not they cooperate at the EU level on certain policies. As we shall argue in the next section, these kinds of DI can be justified as solutions to the proportionality and the partiality problems respectively (for a summary see Table 2.1). Moreover, for policies where such differentiation is allowed the risk of domination diminishes given one size may well fit all those who remain involved. As a result, it will be more legitimate for decisions among the participating member states to be taken by majority rule, thereby overcoming the Table 2.1: Democracy, diversity, and differentiation Democratic value

Equality

Impartiality

Social/​cultural preconditions

Equal stake

Shared values

Type of heterogeneity

Different socio-​ economic stakes in a given collective good

Cultural differences –​ lack of identification as a public or absence of shared public reasons

Type of problem associated with heterogeneity

Proportionality

Partiality

Form of differentiated integration

Capacity

Sovereignty

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problems with consensus and supermajority decision-​making discussed. However, the deployment of such exclusions and exemptions may themselves give rise to domination. As we saw in Chapter 1, both exclusions and exemptions can give rise to substantive unfairness by depriving some from benefits to which they should be entitled and relieving others from costs and obligations they ought to undertake. These risks can be mitigated by DI needing to be agreed and monitored through the common consensual mechanisms described earlier. Democratic differentiation In this section we shall explore the democratic case for capacity and sovereignty DI, arguing that they can be justified on grounds of equality and impartiality respectively in order to tackle the proportionality and partiality problems and ensure fair outcomes. As we shall note, the two types of differentiation often interact with each other. They also are supplemented and balanced by the consociational mechanisms governing EU decision-​making as a whole. It is only when seen as a package that such measures prove non-​dominating. With regard to equality, we noted in the Introduction and Chapter 1 how economic and social heterogeneity can be problematic in the case of collective goods (Kölliker, 2001; Lord, 2015). Even when all countries have an equal stake in a common measure, they may not have equal incentives to resource it. However, differences in population size, varieties of capitalism, economic specialization, and wealth may all lead to different stakes, giving rise to the proportionality problem. Giandomenico Majone (2016) has observed how the logic of collective action often militates against the optimal provision of a collective good, particularly among a large and heterogeneous group. If all members benefit from a collective good because it is a public good or membership of the club producing it is automatic, they will have an incentive to free ride on the efforts of others and to contribute less than their fair share

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to its provision. In a small group, wealthier participants may be willing to cover more than their fair share, accepting that they gain more from the good and would suffer a greater loss from its not being supplied than in paying disproportionally to provide it. Selective incentives can also be offered to encourage compliance. For instance, the Common Agricultural Policy originated as part of a grand bargain between France and Germany to gain French support for further European integration in other areas. Yet, as the club gets bigger, such trade-​offs get harder to arrange, especially if the balance between wealthier and poorer countries tips decisively towards the latter, as has happened post-​Eastern enlargement whereby Luxembourg has a GDP/​capita that is 4.8 times that of Bulgaria (Eurostat GDP/​capita in PPS, 2020). The poorer and/​or smaller states will tend to exploit the wealthier and/​or larger states. Clubs with a larger membership that possess such asymmetries are also more likely to include members for whom the costs outweigh the benefits associated with the good. There are also likely to be disagreements as to which collective goods should be provided in the first place, increasing the transaction costs of obtaining consensual agreement among all concerned. In these circumstances, it becomes rational to employ capacity forms of DI that reduce the club involved in producing a given collective good to a smaller group than the whole so as to overcome the proportionality problem. Two mechanisms have been employed to achieve this result. One approach, suggested as early as 1975 in the ‘Leo Tindemans Report’, involves allowing a small ‘pioneer’ group to forge ahead with cooperation in a given policy (Piris, 2012, p 67). However, since Amsterdam the Treaties have authorized both ‘in-​built’ cooperation for certain members in policy areas specifically mentioned in the Treaties, such as the Schengen and Euro areas, and allowed certain members to employ EU institutions for ‘enhanced cooperation’ on a case by case basis should at least nine member states wish to do so (Piris, 2012, pp 70–​5). A corollary of such measures has been to exclude those states

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that fail to reach a given threshold sufficient to make them fair participants in a particular club good, although hitherto such exclusions have been seen as temporary. As we have observed before, the most significant example of this approach is participation in the Euro, which depends on the fulfilment of certain preconditions, although arguably these criteria have proved neither stringent enough nor been applied with appropriate rigour. The formation of exclusive clubs such as these might be thought to go against a modern democratic principle in which all have an equal vote regardless of their wealth. However, apportioning stakes relative to wealth makes more sense if we see certain collective decisions as more like a joint investment decision, where power and benefits tend to be apportioned according to the amount invested (Christiano, 2015, pp 1006–​7). However, there are areas where this parallel does not hold. Take the exclusion of Bulgaria, Romania, and Croatia from the Schengen Area. This measure might also be justified on the grounds that they had a disproportionate interest in free movement in order to access better jobs in other member states. However, an injustice might be thought to be committed where the stake an excluded and poorer country has in a collective arrangement is greater than those of the richer states that are included. For example, in the case of free movement the potential costs to existing member states of an influx of cheap labour was arguably less than the benefit to the new member states when such temporary arrangements were introduced, so that the latter were unfairly treated in having their interests weighed equally with those of the former. This sort of example illustrates a paradox noted by Christiano (2015, pp 1008–​10), whereby those who have more of a stake in international trade decisions are often the smaller and poorer states, yet they invariably have less rather than more bargaining power in a voluntary scheme than richer countries with less of a stake. That disparity in bargaining power can be to some degree alleviated by multilateral treaty making and the sort of

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consociational governance mechanisms that we noted typify the EU. These arrangements allow coalitions to develop among the smaller and poorer states and facilitate their pooling informational resources. Most importantly, their possession of a veto can allow them to force concessions and compromises. For example, the Wallonia regional parliament was able to hold up the Canada-​EU Trade Agreement (CETA) in order to put in place measures aimed at protecting the democratically determined public services and regulations of the various states and regions of the EU from being undermined on the grounds that they formed barriers to free trade. A second approach to the proportionality problem involves taking subsidiarity seriously and accepting that different functional tasks may be assigned to a wide variety of different levels involving different groups of states and even of regions not only for reasons of efficiency but also to reflect the degree of interest each of the participants has in it. Such a solution would extend the EU’s variable geometry, yet no more than is common within many unitary federations that allow the asymmetrical devolution of various competences to different regions. Again, a Treaty basis already exists for such flexibility (Piris, 2012, pp 75–​7). Protocol 25 on the exercise of shared competences makes explicit that even in areas where the EU has adopted legislation, member states can legislate nationally and conclude agreements with other states in those areas not specifically governed by the relevant EU act. Indeed, since the 1980s the Commission has limited many measures to ‘minimum’ or ‘partial’ harmonization. Article 100A (4) of the Single European Act even introduced the possibility of a partial opt-​out from a given harmonization if ‘a member state deems it necessary to apply national provisions on grounds of major needs referred to in Article 36’. As we remarked in the Introduction and Chapter 1, public goods raise a potential problem for DI through being non-​ excludable (Lord, 2021). Consequently, they generate positive externalities from which non-​club members still benefit or

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negative externalities that disadvantage them further. Fair-​play arguments of political obligation suggest that in such cases all should contribute (Rawls, 1964). Nevertheless, unless such goods are morally obligatory, in that they relate to upholding basic rights, it would be illegitimate to force people into accepting benefits they do not value (Nozick, 1974, pp 90–​5). At some point, all the member states would need to be involved in deciding whether and how far such goods should be provided. The partiality problem enters here, since this allows for those who conceive of themselves as a distinct public, with divergent public norms, to make their own decisions as to which collective goods they should support or how they should be provided in circumstances where they feel their distinct but reasonable views will not get an impartial hearing. Consequently, as we saw in Chapter 1, even when public goods are involved, the obligation on a member state may be to make a proportionate contribution of a kind that need not involve cooperation in an EU level policy (Christiano, 2012). Indeed, in the case of a poorer state, proportionality considerations may involve wealthier states offering a temporary exemption on capacity grounds and taking up the slack in the meantime (Caney, 2010). However, EU policies with this property are exceptions not the rule. Not even all environmental policies tackle EU wide public goods or bads. Negative or positive externalities cannot provide a justification for a common policy on beach cleanliness, for example. Here, the advantages or disadvantages accrue largely to local residents and so can be differentiated. The same logic applies to common resource pools, such as fish stocks. The proportionality problem can often overlap with the partiality problem stemming from political and cultural heterogeneity. Here sovereignty DI offers a solution. This possibility has also had a treaty basis since Maastricht. For example, Article 3 TEU asserts the Union ‘shall respect its rich cultural and linguistic diversity’, Article 67 (1) TFEU that it will ‘respect … the different legal systems and traditions of the member states’ and Article 4 (2) TEU that it ‘respect the

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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’. More specifically, Articles 83 (3) and 151 TFEU assert that relevant Union measures must respect national practices in the operation of the criminal justice system and social policy. These and similar articles reflect tensions from the 1970s onwards between national constitutional courts and certain rulings of the CJEU regarding areas where the former held domestic constitutional norms legitimated restrictions on the free movement of goods, services, capital, and labour that the latter sought to uphold. This conflict was at the heart of a whole series of key cases where the CJEU was criticized for extending the range of its jurisdiction and interpreting rights in a largely market manner that showed scant respect for national constitutional values: notably, Cinéthèque, Groener, Bond, ERT, and Grogen (De Witte, 1991; Coppel and O’Neill, 1992). Such issues have played an important role in a number of key opt-​outs, such as the Danish Protocol allowing a permanent derogation prohibiting the purchase of second homes by non-​Danes and regarding its non-​participation in the European Policy on Defence and Security, or the (now, no longer necessary) Irish Protocol on Article 40.3.3 concerning the prohibition of abortion. Denmark also has opt-​outs from certain central EU policies relating to the free movement of persons and the Euro, on the grounds that these are core powers of sovereignty. Calls for such opt-​outs have spread to other countries due to the pressure to share the burden of refugees in the wake of the migrant crisis and to introduce constitutional measures regarding public spending following the Eurozone crisis. Sovereignty DI in such cases reflects the fact that the different demoi of the member states have already developed their own constitutional and juridical orders that reflect the distinctive and diverse public cultures of their citizens. As a result, impartiality in the application of constitutional norms may not be possible at the EU level. Even if all the member states endorse broadly

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the same set of rights and democratic principles, they may have legitimately different views about their scope and relative weighting with regard to both each other and other important values and interests that reflect valid cultural differences. The right to freedom of expression is accepted by all member states, for example, but in certain countries it is interpreted as warranting the special protection of linguistic minorities or a national language on the grounds that a people’s culture provides the necessary context within which they express themselves as possessors of a specific identity. Such reasoning led the German Federal Court to affirm in its 2009 Lisbon Judgment that European unification should ‘not be achieved in such a way that not sufficient space is left to the member state for the political formation of economic, cultural and social living conditions’. Nevertheless, basic rights if not EU law can limit how much sovereignty DI is justifiable. The Polish stance on homosexuality, for example, is problematic in itself, not just because it can restrict mobility and non-​discrimination in the EU. Likewise, the degree to which Hungary and Poland are currently adhering to the principle of democracy and the rule of law, and hence should be allowed full membership of the EU, has become increasingly debatable for a number of commentators (Kelemen, 2017). Some critics fear arguments for sovereignty DI might be abused to justify democratic backsliding by certain member states, and that the only way to respond to such risks is to strengthen the federal architecture of the EU by enhancing the authority of the European Parliament, Commission, and the CJEU and increasing the use of simply majority decision-​making (Kelemen, 2019). It is to this issue that we now turn in Chapter 3. Conclusion Scholars bemoaning the democratic deficit of the EU tend to argue for a deepening of integration and the strengthening of democracy at the supranational level by enhancing the

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powers of the EP. However, such proposals ignore both how social and economic heterogeneity may render EU level decision-​making regarding some collective goods inefficient and inequitable for all member states, and political and cultural heterogeneity drive sovereignty and identity-​based fears of majority tyranny. To address these shortcomings, we have proposed a democratic rationale for different categories of DI. Such an approach focuses on criteria that can render differentiation democratically legitimate. Democracy provides an equal and impartial process for the legitimate making of fair collective decisions. However, the suitability of such a process assumes that all citizens have an equal stake in the collective decision and conceive themselves as a public capable of debating within a shared set of public reasons. We have argued that to the degree groups of citizens are heterogeneous and have unequal stakes in a collective decision then one can expect capacity DI, which reflects the proportionate degree of interest given groups may have in any policy. Likewise, to the extent groups have heterogeneous public cultures and feel they belong to distinct demoi, then collective decision-​making risks not being impartial, thereby justifying differentiated group rights that will lead to an asymmetric distribution of self-​government between different member states and a number of exemptions typical of sovereignty DI. Nevertheless, as we had noted in Chapter 1, to ensure overall fairness both need to be located within and balanced by a framework of common decision-​making at the EU level, which also gives a voice to EU citizens as a whole. However, as with systems of consociational governance in states containing a plurality of national minorities, these common decision-​making systems are also likely to require features, such as the use of co-​decision and Qualified Majority Vote in the Council, that address the proportionality and partiality problems. Such mechanisms, though, are justified by democratic values. As we shall see in the next chapter, they are inconsistent and incompatible with attempts to roll back from such values.

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THREE

Democratic Backsliding and the Limits to Differentiated Integration

Recent developments in Hungary and Poland have pushed the issue of democratic backsliding to the centre of political and academic debates about the nature and future of the EU. Democratic backsliding consists of a retreat by an incumbent government from democratic values and practices with the intention of curtailing criticism and inhibiting democratic opposition. As such, it involves a shift from democracy towards autocracy. A number of commentators have argued that the demoicratic and flexible view of the EU advocated here cannot provide an adequate response to this unfortunate development. They fear the constitutional pluralist approach to EU law associated with this position undermines the legal remedies that might otherwise be available to act against such regimes, while the related justifications of DI explored in Chapters 1 and 2 might be employed by them to opt out from a commitment to meet the democratic standards enumerated in Article 2 as preconditions of EU membership (Kelemen, 2019). In this chapter we seek to respond to this criticism. We shall argue that a constitutional pluralist approach can offer a theoretically coherent rationale for countering democratic backsliding, including applying conditionality requirements to the receipt of EU funds and removing certain voting rights in the Council –​measures which we dub ‘value’ DI.

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Constitutional pluralism (CP) reflects the logic of the demoicratic conception of the EU as an association of democratic states that ‘govern together but not as one’ (Nicolaïdis, 2013, p 351), a view we have seen as underlying arguments for differentiated integration. CP considers that the conferral of competences upon the EU not only takes place in conformity with the different constitutional processes of the various member states but also remains constrained by them. EU law, therefore, has a plurality of different national sources. Meanwhile, the validity of EU law’s claims to primacy ‘results from [each] state’s amendment of constitutional and sub-​ constitutional law to the extent required to give direct effect and applicability to Community law’ (MacCormick, 1999, p 117). EU law may itself constitute a distinct legal system and the CJEU be the highest authority with regard to the interpretation of its norms, as the CJEU insists, but the same holds for the highest court in each of the member states with regards to the national legal system, which thereby retains the competence to interpret the validity of EU law in its interaction with domestic law (MacCormick, 1999, p 118). Consequently, the potential exists for a stand-​off, such as has arisen with certain judgments of the German Federal Constitutional Court (FCC),1 whereby the CJEU asserts some right or obligation is binding under EU law for a person within a given national jurisdiction, which a national court argues to be either ultra vires, going beyond what has been conferred, or invalid, going beyond what is conferrable in terms of the identity of the national constitution. As a result, ‘the same human beings and corporations are said to have or not have a certain right’ (MacCormick, 1999, p 119). Indeed, national and EU law are now so intertwined that domestic courts may find themselves having to decide whether to accept the supremacy claims of the CJEU or of the national constitutional court (Barber, 2010, pp 166–​7). Critics of this conception note how certain demoicratic and intergovernmental features of EU governance, such as the need for consensus in the Council to trigger Article 7

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(Müller, 2015) or the way party groups in the EP operate as coalitions of national parties (Kelemen, 2017) have weakened the EU’s response to democratic backsliding. They regard CP as similarly bolstering democratic backsliding regimes to resist EU action against them, by challenging adverse judgments by the CJEU or actions against them by the Commission as either ultra vires or invalid (Kelemen et al, 2020). These scholars advocate a more federal approach, in which the CJEU has final authority on disputes concerning its competence. They contend this allows for a more proactive role for the EU’s supranational institutions, particularly the European Commission and the CJEU, potentially backed by a new ‘Copenhagen Commission’ (Müller, 2015). They dispute the validity of challenges from national constitutional courts to CJEU judgments (von Bogdandy and Spieker, 2019; Kelemen et al, 2020), regard DI as a Trojan Horse weakening the uniform application of EU law, and seek to weaken the blocking potential of the Council (Müller, 2015; Blauberger and Kelemen, 2017). By contrast, we shall argue that CP can supply theoretical backing for an alternative approach, which gives a greater role for independent monitoring bodies as well as the opposition and civil society actors within the targeted member states and beyond (Schlipphak and Treib, 2017). It can also legitimize measures that constitute forms of what we call ‘value DI’ that entail excluding backsliding governments from accessing certain EU funds or voting on some EU decisions in the Council. In the next section, we argue that the democratic values of Article 2 possess both intrinsic worth for the EU’s legitimacy in the context of a pluralist society, and instrumental worth for the effective and equitable functioning of the single market and the attainment of the EU’s declared aims of peace and prosperity. As such, measures to tackle democratic backsliding and ensure all member states meet minimal constitutional democratic criteria cannot be regarded as ultra vires, since the democratic values enshrined in Article 2 should form a central

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part of the constitutional identities of all member states. Indeed, as the following section shows, this condition provides the ontological basis for the demoicratic account of the EU, on which CP is premised. Therefore, CP arguments cannot be validly deployed to legitimize democratic backsliding. On the contrary, as we argue in the final section, they provide a basis for justifying action against democratic backsliding that arguably gains in legitimacy through being premised on respect for the democratic constitutional identities of the member states. Accordingly, we develop four criteria consistent with CP that action against a democratic backsliding state should follow to be considered legitimate. Drawing on existing reform proposals, we suggest two forms of what we call ‘value’ DI that such action could take: the imposition of conditionality requirements on the disbursement of EU funds and the withdrawal of voting rights in the Council. What is democratic backsliding, and why bother? Democratic backsliding regimes progressively undermine the three basic components of a functioning democracy: free and fair elections, civil and political rights, and an independent judiciary and the rule of law (Ginsburg and Huq, 2018, p 10). They amend the constitution so as to entrench their own ideological preferences; implement electoral reforms favouring themselves (Herman, 2016, pp 259–​62); make criticism of the government liable to persecution on grounds of defamation, slander, or incitement to public disorder; and subvert the independence of the judiciary by packing the courts, and especially the constitutional court, with loyal supporters (Scheppele, 2018; Sadurski, 2019). These measures all serve to inhibit opposition and allow governments to rule unchecked. They strike at the intrinsic and the instrumental value of democracy as both a fair mechanism for resolving the disagreements arising from the conflicting interests and opinions typical of a pluralist society (Rawls, 1993, pp 56–​7),

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and a means for promoting rights protection (Christiano, 2011), checking corruption (Rothstein and Varraich, 2017), and enhancing prosperity (European Commission, 2018). Both these democratic qualities are essential to the functioning of the EU. The intrinsic value of democracy plays a central role in the EU’s legitimacy. Not only does the legitimacy of its competences rest on them having been democratically conferred upon it, but so does the legitimacy of its decisions and their implementation, involving as they do the assent of elected governments and members of the EP, on the one side, and of national parliaments that transpose EU measures into domestic legislation, on the other. If, however, governments and the parliamentary majorities that constitute them are themselves not fully democratic, then neither the conferral of competences by them nor the transposition of EU law into domestic law can generate legitimacy for the EU. Instead, including democratically backsliding states in EU decision-​making impairs and questions the democratic quality of the EU. Such states not only are unable to fairly represent their citizens in EU decision-​making but also can distort votes determining EU policies in both the Council and the EP. As a result, the involvement of backsliding states adds to the notorious democratic deficit of the EU (Müller, 2015, p 143; Kelemen, 2017). Moreover, this is a deficiency the EU itself is complicit with so long as it tolerates and even funds such governments (Theuns, 2020, pp 149–​50). The instrumental value of democracy supports the EU’s core aims of peace and prosperity. Democratic states tend not to go to war with each other, and to cooperate in peace-​building initiatives. Democratic backsliding regimes within the EU potentially weaken that commitment. For example, Hungary’s relations with Russia have led it to criticize EU sanctions following Russia’s 2014 annexation of Crimea and hampered NATO attempts to foster ties with Ukraine (Hopkins et al, 2019). As for prosperity and well-​being, democratic backsliding threatens EU cooperation in a number of core areas, not least

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due to worries about corruption and a failure to apply EU law impartially. For example, concerns exist that EU structural funds are being systematically misappropriated in Hungary to favour the ruling party and associates of the government, thereby undermining their purpose. In 2015 OLAF (Office de Lutte Anti-​Fraude) found 14 cases of embezzlement of EU funds in Hungary, which continues to have the most cases of fraud among the member states (European Anti-​Fraud Office, 2016). Constitutional pluralism and the legitimate limits of differentiated integration The normative claims of CP and DI rest on and reinforce the arguments outlined earlier concerning the intrinsic and instrumental value of democracy. As we shall argue later, democratic backsliding proves inconsistent with both, therefore. However, critics allege two weaknesses of CP and DI in this regard. The first criticism is that they could be abused to give a spurious legitimacy to attempts by democratic backsliding member states either to request opt-​outs from the values enumerated in Article 2, on the grounds that they conflict with the national political and constitutional traditions defended in Article 4, or to challenge EU action against backsliding as ultra vires (Kelemen, 2019). The second criticism is that CP and DI potentially subvert the uniformity and coherence of EU law, which critics regard as necessary qualities for its equitable and effective implementation in a manner that treats all EU citizens fairly (Scott and de Búrca, 2000; Kelemen, 2016). We dispute both criticisms, defending CP in this section and then exploring how it can justify the use of ‘value’ DI against backsliding regimes in the next. The first criticism suggests CP could encourage claims that EU action to support domestic democracy either illegitimately encroaches on the ‘fundamental structures’ of a member state (through identity review based on Article 4), or goes

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beyond the competences member states have conferred upon it (through ultra vires review based on Article 5). Meanwhile, similar reasoning might justify sovereignty DI with regard to Article 2. This worry has gained credibility with the reaction of Poland to the Weiss judgment of the FCC of 5 May 2020. The Weiss judgment deemed the CJEU’s ruling on Decision 2015/​774 of the European Central Bank (ECB) as ‘arbitrary’ and hence lacking the ‘minimum of democratic legitimation’ necessary under Article 23 (1) of the German Basic Law (2 BvR 859/​15, para 2). This judgment was immediately seized upon by the Polish government in its legal battle with the Commission and the CJEU over its judicial reforms, with the Ministry of Justice arguing that it vindicated a recent argument of the Polish Constitutional Court disputing claims regarding the superiority of EU over national law in such a domestic matter (Polish Ministry of Justice, 2020). Some commentators fear Hungary may do likewise (Fleming et al, 2020). However, to invoke CP arguments is one thing, to be justified in doing so on the matter at hand quite another (Baranski et al, 2020). Arguments that are sound in themselves ought not to be excluded out of fear that they might be abused, as Kelemen et al (2020) suggest and Maduro (2020) partially concedes. Rather, the issue is whether their use in a given case is consistent with the reasons that underlie and validate such arguments, in this case CP, and hence is legitimate. As we noted, we ground our case for CP on a conception of the EU as a demoicracy, in which member states ‘govern together but not as one’ in those areas where they have conferred competences on the EU according to their respective legal and political systems (Nicolaïdis, 2013, p 351). Accordingly, we read Article 4 TEU as requiring that respect for the equality of member states before the Treaties entails showing equal concern and respect for their ‘national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-​government’. From a demoicratic perspective, CP is hard-​wired into the

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very structure of the EU, necessitated by the heterogeneity of its member states and their citizens (Bellamy, 2019, pp 6–​7). It adopts the pluralist rationale for constitutional democracy within states and applies it to relations between them. Just as pluralism among the persons constituting a demos within a state mandates democratic mechanisms that allow for critical opposition by citizens that protect their rights and limit the capacity of governments to act arbitrarily, so pluralism between demoi justifies mechanisms fostering opposition by the member states to protect their rights and avoid arbitrary rule by federal agencies, such as the CJEU. Such an arrangement produces what Miguel Maduro has termed a ‘counter-​punctual’ system of political and judicial decision-​making (Maduro, 2003, pp 98–​100), analogous to domestic mechanisms such as the separation of powers, scrutiny by a second chamber, competition from opposition parties, and some form of judicial review. Such a system obliges member states and the EU to hear and harken to each of the others in ways that reflect equal concern and respect. Arguably the very introduction of fundamental rights protection into Community law is owed to this process (Maduro, 2003, p 99), whereby identity review by the German and Italian constitutional courts in particular led the CJEU to acknowledge that ‘measures which are incompatible with the fundamental rights recognized by the constitutions of [the member states] are unacceptable in the Community’ (Hauer Recital 15; see Weiler, 1999, pp 108–​16). Even the Weiss judgment, condemning the CJEU’s reasoning as ‘not comprehensible’ and thereby potentially exceeding its ‘judicial mandate’, can be regarded as ‘counter-​punctual’ in spirit, its undiplomatic language notwithstanding. As Dieter Grimm (Grimm, 2016, ch 14) has noted, integration through law via the competence-​stretching judicial decisions of the CJEU has proved a mixed blessing. While it may have filled a political void at times, it has also often tied the EU into policies that are not only inefficient and unfit for purpose, but also lack democratic

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legitimacy and become a focus for Euroscepticism. In forcing the EU to confront both the efficacy and legitimacy of the ECB’s mandate and the rules of the European Monetary Union (EMU), the FCC could be seen as providing precisely the form of ‘counter-​punctual’ check that is both desirable and necessary in a plural and demoicratic constitutional system (Bobić and Dawson, 2020; see also Baranski et al, 2020; Dani et al, 2020). CP not only guards against over-​reach by EU institutions, but also serves to tame the exclusive and self-​interested nationalism of the member states (Weiler, 1999, p 341). For, the counter-​ punctual process described earlier forces national courts to engage with each other and the CJEU in the development of a system of EU law that entails mutual recognition of their plural orders (Weiler, 2003, pp 18–​22). However, to operate in this way all the member states must themselves be constitutional democracies and recognize pluralism. The intrinsic and instrumental qualities of democracy required for the legitimate and efficient and equitable functioning of an association of states such the EU, depend on its member states possessing democratic qualities. Only democratic states can credibly represent their citizens and be counted on to honour their contracts, and so engage in what Article 4.3 terms ‘sincere cooperation’ with other member states on the basis of ‘mutual respect’ (Rawls, 1999, pp 16, 18–​19). Therefore, no basis exists for identity or ultra vires objections to EU actions in order to defend democratic backsliding, since these arguments involve a rejection of pluralism and mutual recognition both internally and externally. Internally, they are designed to protect measures that curtail pluralism and democratic debate and opposition. Externally, far from being part of a ‘counter-​punctual’ move aimed at improving the democratic quality and efficacy of EU decision-​making, they are likewise purely self-​serving measures on the part of the governments and their judicial appointees proposing them. A similar logic can be applied to DI. Again, the legitimate driver of such demands stems from pluralism: economic heterogeneity in the case of capacity DI and political or cultural

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heterogeneity in the case of sovereignty DI. As we noted in Chapter 2, arguments for DI can relate to the lack of an equal stake in a given common policy, on the one hand, or claims of cultural difference, on the other. However, these arguments are grounded in equality, whereby like cases are treated alike but relevantly unalike cases are treated differently (Dworkin, 1977, p 227). As in the case of disadvantaged groups, to be treated with equal concern and respect may require being treated in distinct ways. Therefore, the rationale underlying DI proves likewise counter to that of backsliding democracies that seek to deny minority rights and discriminate to subvert rather than advance equality. The second criticism enters here, whereby it is claimed that for EU law to be coherently, effectively, and equitably applied, the CJEU must act as a final and supreme legal authority. What happens in the event of either a stand-​off, where no party gives way, or, as with democratic backsliding, when the pluralist rules of the game are abused? It should be noted that CP only leads to a stand-​off and incompatibility if neither side blinks. Inconsistent laws need not produce inconsistent action (Barber, 2010, pp 169–​70). Each side can exercise restraint and either leave the constitutional dilemma unresolved or seek an ‘incompletely theorized’ compromise (Richmond, 1997, p 417; Maduro, 2003, pp 98–​9), of a kind that often informs majority judgments within multi-​member apex constitutional courts (Sunstein, 1996, pp 39–​44). Thus far such tacit agreements to disagree form the norm, with derogation the exception, and the feared Mutually Assured Destruction (MAD) (Weiler, 1999, pp 320–​1) avoided. Therefore, CP need not give rise to a lack of uniformity in the application of equal rules. Rather, it has been a way whereby those rules are reciprocally negotiated so as to be implemented in a mutually acceptable way. However, this counter-​punctual mechanism will not work in the case of a court or state that does not act reciprocally or breaches the very rules and values of the constitutional

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pluralist process. Does that make CP a ‘fair weather’ argument (Kelemen, 2019, p 254)? Would it not be necessary in such circumstances for an apex court or political body, such as the European Council in the case of Article 7, to be granted the competence to decide the issue? And would that not go against the very idea of CP, revealing a logical incoherence at the heart of the confederal account, as federal critics claim? These critics argue that only the CJEU can have the competence to judge not just compliance with EU law, but also where and when it applies, and hence must have competence over its own competence. Yet, as constitutional pluralists remark, such disputes cannot be resolved by appealing to a higher authority because the dispute turns on the question of supremacy and the fact that all the courts involved claim competence over their own competence (Barber, 2010, pp 167–​9). Having the CJEU rule on ultra vires decisions empowers one of the parties to the dispute. Moreover, the one attempt so far to legitimize such a claim to competence-​competence, the attempted constitutional Treaty, failed (Weiler, 2003, p 8; Walker, 2016; Bobić and Dawson, 2020). The federal solution, therefore, currently lacks democratic legitimacy, and as such would be liable to exacerbate the problem rather than providing a solution (Grimm, 2016, pp 300–​3). Does that make a stand-​off between the CJEU and a national court irresolvable, other than by a potentially MAD act risking mutual disintegration? Even with regard to democratic backsliding, the grounds for CJEU competence are potentially contentious. Identity and ultra vires defences of democratic backsliding may be spurious, but the CJEU’s competence-​competence to adjudicate on such challenges is questionable –​the concern remains that it will be judge in its own cause. Meanwhile, even if this issue could be resolved, the Treaties are vague or silent on both the institutional mechanisms required to secure the rather broadly defined values in Article 2 and the Charter, and the basis on which their absence might be litigated. Indeed, to act the CJEU has

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had to ‘read in’ the implication that all member states have an independent judiciary into their legal obligation ‘to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’ in Article 19 (1) TEU and for the proper working of the preliminary ruling mechanism under Article 267, or find grounds under the infringement proceedings (Articles 258–​2 60 TFEU) (for details, see European Commission, 2019a, p 4). Yet, an extensive use of such weakly based judicial rulings, such as some advocate (von Bogdandy and Spieker, 2019, pp 393–​405), risk being treated as lacking either legitimate authority or an adequate basis in EU law, and might even help boost support for the elected governments against which they are used (Schlipphak and Treib, 2017, p 362), a point conceded even by some federalists advocating legal sanctions (Blauberger and Kelemen, 2017). As a result of these potential legitimacy problems, we believe a different approach is warranted. In the next section, we argue that CP and DI can be part of the solution in providing a way of addressing democratic backsliding with less danger of arousing such criticisms. Tackling democratic backsliding: constitutional pluralism and value differentiated integration Schlipphak and Treib (2017, pp 354–​5) have shown how federally inspired action by the CJEU and European Commission has been open to criticism as lacking constitutional or democratic authorization, allowing democratic backsliding governments to shift blame onto Brussels for any adverse consequences of their actions, and to justify those actions as a necessary response to illegitimate EU control of domestic processes. Therefore, any EU action must be not only normatively justifiable, but also perceived as legitimate by large parts of the population, both in the concerned member state as well as across the EU. We maintain that to be legitimate EU action against a backsliding member state must fulfil four criteria that align with

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the account of CP developed in the last section. In particular, EU action must avoid appearing to be self-​authorized –​an exercise of ‘competence-​competence’, whereby supranational institutions define on their own account the content of EU democratic norms, when they are contravened, and what penalties should follow. Instead, it is crucial for them to act in ways that can appeal to the joint authority of the demoi of both the other member states and, to a degree, even the backsliding state. The following four criteria seek to support this aim. First, action must avoid inviting the charge of being an arbitrary imposition, which fails to consult the views and interests of the member states and their citizens, or to be accountable to them. Consequently, the European Commission and the CJEU should not be the organs that advise on whether EU action is in order. Rather, the process should gain authority from a body that can credibly represent the pluralism of the member states and be ultimately accountable to the Council. It should also involve actors from civil society and the opposition within the targeted member state. Second, the identification of any democratic failings needs to be undertaken in an impartial manner, which applies equally and consistently to all member states (Theuns, 2020). To meet this condition, the monitoring should come from an independent body (Schlipphak and Treib, 2017, pp 361–​2; Blauberger and van Hüllen, 2021, pp 9–​10, 11–​12). Third, sanctions must be proportionate to the degree of backsliding and operate according to a pre-​determined scale. Fourth, sanctions should target the government rather than the entire population (Blauberger and van Hüllen, 2021, pp 6–​7). We now briefly sketch our own proposal, which we relate to these four criteria. We put forward a process for identifying breaches and proposing action against them to meet the first two criteria, and measures which we term ‘value’ DI that conform to the third and fourth criteria. To render the process compatible with our first and second criteria, we suggest a modification and development of the European Commission’s plans for a new annual Rule of Law

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review cycle (European Commission, 2019b, p 9) and its proposal for a joint regulation of the EP and the Council to protect the EU’s budget from ‘generalised deficiencies as regards the rule of law in member states’ (European Commission, 2018). The EP has suggested with regard to the latter that a ‘Panel of Independent Experts’, consisting of a nominee from each of the national parliaments and five from the EP, should determine the severity of the ‘deficiencies’ (European Parliament, 2019, Amendment 45). Our proposal is that these nominees should form an Article 2 Commission but should be vetted for their knowledge and independence by the Panel constituted under Article 255 TFEU for determining the suitability of member states’ nominees to the CJEU –​a process also used by the Council of Europe that incentivizes the choice of suitable candidates. The Commission would receive evidence on deficiencies with regard to the three components of the minimal definition of a constitutional democracy given in the previous section, which would be collected as part of the new annual Rule of Law review cycle. The evidence would come from a range of relevant organizations, such as bodies associated with the Council of Europe, and ensure the involvement of domestic civil society organizations and citizens. The Commission will draw on this evidence to determine whether an infringement of Article 2 has occurred through a failure to satisfy one or more of the three minimal conditions of constitutional democracy, thereby lying outside an allowable ‘margin of interpretation’ of democratic values, and to calibrate its severity against a scale of penalties. To render the penalties for democratic backsliding compatible with the third and fourth criteria, we suggest what we call value DI. Much as capacity DI allows the temporary exclusion or exemption of a member state from certain policies, such as the euro, where they may lack the capacity to participate as equals, so value DI recognizes that Article 2 values are necessary features for the legitimate functioning of the EU and the effective achievement of its aims. Consequently, a member state

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that fails to uphold them may likewise be justifiably excluded from full participation in the operation of the EU as lacking the democratic qualities required for what Article 2 terms ‘sincere cooperation’ as a full member state. The two main exclusions under value DI are the halting of disbursements of EU funding to backsliding states and the suspension of voting rights in the Council. The first type of value DI that we argue can be justified is of financial nature. In short, it means that EU funds are not disbursed to a backsliding state. Indeed, the EU in 2020 linked its 2021–​2027 Multiannual Financial Framework (MFF) and the Next Generation EU related funds to rule of law conditionality, implying that funds will only be disbursed to those member states which observe the rule of law. However, the conditionality that was introduced does not cover all three minimum criteria of democracy laid out in section 2, but could be adapted to do so. Such financial penalties would be capable of being exacted in a proportionate and targeted way. They can be reduced on a sliding scale, with minor infractions attracting small and temporary limits to accessing structural and investment funds, and graver infractions more severe and longer-​lasting economic sanctions, including fines and restricted access to the EU single market (Theuns, 2020, p 149). In certain instances, funding can also be given directly to end users rather than via government agencies (European Parliament, 2019, Amendment 23; Theuns, 2020, p 156). The second type of value DI that we propose concerns the withdrawal of voting rights in the Council. In Article 7 para 3, the possible suspension of voting rights in the Council is mentioned. One might object that the suspension of voting rights would undermine democratic legitimacy by subjecting a given member state to processes in which they had ceased to play a role in determining. Yet, democratic legitimacy is reduced and a deficit is introduced by having democratic backsliding governments involved in EU decision-​ making in the first place. Nevertheless, this criticism might be partly met by the process whereby this decision is taken being

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Democratic Backsliding and the Limits to DI

non-​arbitrary and impartial in the way specified earlier, and through its being proportionate –​the member state can be excluded from decisions in policy areas where corruption and failures are apparent, for example, while the excluded member state could still take part in deliberations in the Council if not in the voting. Moreover, it can be targeted against the government by allowing all elected MEPs to retain voting rights in the EP. Whereas it might be justified to exclude MEPs from voting in policy areas their state has opted out of (Heermann and Leuffen, 2020), that is not the case in this instance and removing the vote of MEPs would render opponents and supporters of the government alike second-​class citizens. It would also treat the EP as a body of national representatives rather than as representing EU citizenry (Curtin and Fasone, 2017, pp 130–​40). Much as advocates of the CJEU being able to rule against backsliding states suggest such judgments constitute a form of ‘reverse-​Solange’ (von Bogdandy and Spieker, 2019), so we consider these value DI exclusions as a form of ‘reduced cooperation’. As with enhanced cooperation, its use must be regarded as a last resort, when attempts at persuasion have been tried, and only be adopted when the prospect of the offending member state rolling back from backsliding does not appear likely within a reasonable period of time, defined as an MFF long-​term budgetary round (compare Article 20 TEU). It must of course remain open for the excluded member state to re-​join once the requisite conditions are met. These conditions must be detailed by an independent authority in charge of the rule of law review cycle, and apply equally to all member states. As with the Article 2 Commission, value DI aims to limit the wiggle-​room for blame-​shifting from backsliding governments to the EU. It also forms an alternative to expelling a member state from the EU, offering instead a less drastic solution that provides a route back to full membership by encouraging a return to constitutional democracy. These processes and measures do not require Treaty changes to be enacted. They meet the first criterion of being

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non-​arbitrary through breaches being determined by a panel of experts suggested by national parliaments from each of the member states, consulting with actors within the member states, and rendering their recommendations accountable to the Council. They meet the second criterion of impartiality through the measures taken to secure the independence of the experts, and the rule of law review process applying equally to all member states. Meanwhile they can result in measures of value DI that we have seen can be rendered proportionate and be targeted at governments rather than all citizens in ways that meet the third and fourth criteria. Conclusion This chapter has argued that far from encouraging democratic backsliding, CP and DI provide a way of legitimately countering it. In a first step, we argued how democracy matters intrinsically as well as instrumentally for the legitimate and effective functioning of the EU. In a second step, we contended that the demoicratic features of the EU render CP an appropriate legal framework for it. This constitutional pluralist framework is inconsistent with democratic backsliding and would not justify opting out of aspects of Article 2 as a legitimate form of DI. On the contrary, in a third step we argued CP provides a legitimate justification for the EU to deploy action against a backsliding member state. On this basis, we developed four criteria that any EU action against democratic backsliding should meet to be legitimate. In a final step, we drew on existing proposals on how to counter democratic backsliding, and suggested a process and penalties, which we term value DI, that meet these four criteria. We likened value DI to a form of ‘reduced cooperation’ based on a lack of capacity to meet one or more of the three minimal requirements for a functioning constitutional democracy. We finished by sketching out two types of value DI –​the cessation of disbursement of EU funds and the withdrawal of voting rights in the Council.

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We have argued that such an approach reduces the likelihood of the EU being accused in its turn of overdrawing on its legal competences and democratic capacity. Moreover, the demoicratic conception of the EU, to which our proposals are related, has the more general benefit of not putting all of our democratic eggs into one basket. If we had a federal EU, what if the EU went populist? In the demoicratic model proposed here, democratic sicknesses at the core need not contaminate the member states or vice versa. Our proposal dovetails with the recent moves by the EU to introduce some conditionality as regards the disbursement of EU funds in the context of its MFF and the Next Generation EU fund. The near future will show whether this proves sufficient to restrain backsliding states such as Hungary and Poland. If it does not, we are likely to see further steps towards harsher measures given that the large majority of the European public is not ready to tolerate those who despise the rule of law (Blauberger and van Hüllen, 2021). If the problem continues and worsens, Article 7 could be triggered or Treaty changes to allow expulsion from the EU might become realistic. Our claim is that the approach we sketch here has a greater chance of legitimizing taking such measures, should they prove necessary.

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PART II

Political Party Perspectives on Differentiated Integration

FOUR

Party Views on Differentiated Integration

What do political party actors think about the questions we have tackled so far? How do they conceive of the substantive fairness of DI, its democratic credentials, and do they link DI to democratic backsliding? Before we delve into these issues, this chapter provides a general overview of political parties’ views on DI. Whereas recent research has emerged on how governments and citizens approach DI (de Blok and de Vries, 2020; Leuffen et al, 2020; Winzen, 2020), political parties’ views of DI have received limited attention so far. We address this gap in the literature by focusing on how political parties perceive of DI and which factors shape their assessments. We start by discussing the literature on political parties, European integration, and DI and present how we analysed our interviews. We then present party views on DI and relate them to the key cleavages that shaped their views. The conclusion summarizes the findings. Political parties, European integration, and differentiated integration Existing research on the views of political parties on the EU has focused extensively on why political parties support or oppose European integration. Ideology occupies a prominent place in these accounts because while parties may shift their approach due to strategic considerations (Meijers, 2017), their ability to do

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so is constrained by their voters and activists, decision-​making structures, and their programmatic reputation (Hooghe and Marks, 2018, p 112). Two ideological cleavages are considered as particularly important in explaining party views on European integration: the socio-​economic left‒right cleavage, and the socio-​cultural libertarian/​cosmopolitan‒authoritarian/​ nationalist cleavage (Prosser, 2015; Hooghe and Marks, 2018; Schäfer et al, 2021). However, whereas extensive research exists on political parties’ positions on European integration, we still know little about how political parties approach DI and what motivates their positions in that regard (for exceptions, see Leruth et al, 2020; Kröger et al, 2021). How might one expect political parties to approach DI? Expectations are difficult to arrive at given not only the two cross-​cutting cleavages mentioned earlier, which are further accentuated by differing national contexts, but also the different forms DI can take. For example, some political parties might view sovereignty DI as a positive development since it accommodates domestic preferences and diversity in the EU. However, others may be less optimistic and view it as a limitation on a country’s decision-​making power because it weakens or even removes their influence on EU policy-​making in these areas (Adler-​Nissen, 2011). In a similar vein, capacity DI may be welcomed by some as a way to foster equality by avoiding ‘one size fits all’ policies. However, others may regard it as a tool for the exclusion of poorer member states from further integration (Chopin and Lequesne, 2016; Kröger et al, 2021). Finally, enhanced cooperation may be viewed by some parties as a way to overcome gridlock, whereas others may view it as allowing unwarranted integration in areas they regard as unnecessary or undesirable. Developing propositions concerning who might hold positive or negative views of DI is therefore very complex. As far as positions on the socio-​c ultural libertarian/​ cosmopolitan‒authoritarian/​nationalist cleavage are concerned, while one might be tempted to equate cosmopolitan values

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Party Views on DI

and support for integration with support for DI, such a move would be misleading. As Dirk Leuffen, Julian Schuessler, and Jana Gómez Díaz (2020, p 4) pertinently note, the nexus between support for integration and support for DI is ‘far from obvious’. Pro-​integration parties, for example, may see DI as a threat to the unity of the European project and oppose it on those grounds. However, they might also see it as a way to overcome resistance to further uniform integration in the future (Kölliker, 2001). Conversely, Eurosceptics may view DI as an appealing option to opt out of unwanted integration and protect national sovereignty, but also see it as a form of integration by stealth which will eventually pressure their country into joining projects which they may have opposed. The relationship between positioning on the left/​right spectrum and positioning on DI is equally ambiguous. The relevance of the left/​r ight cleavage in explaining positions on EU integration has been frequently questioned (Hooghe et al, 2002, pp 971–​2; Prosser, 2015; Hooghe and Marks, 2018; Schäfer et al, 2021), and the same might apply to positions on DI. In addition, assuming this cleavage did matter, it is unclear how left/​r ight positioning might affect views on DI. Consider, for example, the position of left-​wing parties whose ideological core is defined by attachment to the principle of equality (Freeden, 1998): would they be expected to support DI as a way to equalize starting conditions and foster economic convergence, or would they be more likely to oppose it as potentially fostering discriminatory practices resulting in inequality between member states? Some initial research into these questions has, so far, given conflicting answers (de Blok and de Vries 2020; Leruth et al 2020; Kröger et al, 2021). Differing views on DI may also arise from other, non-​ ideological cleavages. Recent public opinion research, for example, shows that citizens in Southern and Central and Eastern Europe tend to be more sceptical of DI than those in Northern Europe and argues that this variation could be explained by sociotropic concerns relating to the anticipated

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effects of DI on one’s own country (Leuffen et al, 2020). Specifically, it posits that popular opposition to DI in the South and East is explained by worries that DI could have negative consequences for European solidarity or be of a discriminatory rather than exemptive nature (Schimmelfennig, 2014), while popular support in the North is determined by the expectation that DI will have beneficial effects. Similar concerns may motivate political party actors, with factors such as country wealth or experience of DI playing a role in influencing their views. However, the direction of the relationship remains hard to predict. For example, parties from poorer countries in Southern and Central and Eastern Europe may view DI positively, as a way to give their member states more time to adapt to the costlier and more complex elements of the EU acquis. By contrast, they may also perceive it negatively, as a source of exclusion and discrimination, if it leaves them out of projects they would have wanted to take part in, or if it makes it possible for richer member states to opt out of contributions set up to help poorer ones (Schimmelfennig, 2014; Chopin and Lequesne, 2016; Kröger et al, 2021). Likewise, parties in richer member states may view DI positively, as either a way to avoid paying the price for integrating poorer member states or an exemptive mechanism that makes it possible for them to stay out of unwanted integration. Yet, they too may also regard it negatively, as a potential source of cherry-​picking and rule-​ bending that could create uncertainty or potential additional burdens, or consider that staying out of further integration may end in them being affected by decisions they have no say in (Adler-​Nissen, 2011). In light of these issues, we draw on our semi-​structured interviews to analyse party views on DI in more depth, so as to get a sense of both how they view DI and how factors such as ideology and country belonging inform their assessment of it. Using NVivo, we manually sorted respondents into the two categories of ‘supporters’ and ‘opponents’ of DI based on whether, on balance, they appeared to have a primarily positive

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Party Views on DI

or negative view of it (for a similar procedure, see Brack, 2015). While this binary division inevitably stylizes complex positions, structuring the analysis around these categories serves the dual purpose of highlighting the divisive nature of DI, and reflects how it cuts across some of the traditional cleavages mentioned earlier. The following section presents the findings. Differentiated integration: friend or foe? Table 4.1 presents an overview of the respondents and their positions on DI. As the analysis will show, respondents were almost evenly split between the two groups, confirming that DI is a fairly divisive form of integration. However, support and opposition did not appear to be motivated by ideological factors, but rather, by ones pertaining to national belonging. Nineteen actors considered DI to be acceptable, while 16 tended to see it as an unsuitable option. Our material suggests no direct connection obtained between support for European integration and support for DI: pro-​EU and anti-​EU actors were evenly divided between the two categories, with 14 pro-​EU and five Eurosceptic actors holding favourable views of DI, and 13 pro-​EU and three Eurosceptic actors holding negative views.1 Left–​r ight positioning also appeared to offer poor guidance to positions on DI. All party families were split on DI, with none unanimously or overwhelmingly supporting or opposing it. Left and far-​left parties were moderately more optimistic about it, with ten respondents in support and seven in opposition. Right, far-​r ight and centre parties were more divided: six right and far-​r ight respondents supported DI, while five opposed it, and three centre respondents supported DI while four opposed it. Not only were party families split, we occasionally also found divisions within the same party concerning views on DI. In fact, in five out of ten cases where we interviewed more than one respondent, we found respondents held differing opinions, suggesting that there was no established party line on the issue.

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Table 4.1: Summary of positions on differentiated integration by party and country Country and number of interviewees

Interviewed parties

Austria (3)

94

Germany (6)

Greece (3)

Interviewee position on DI (+​/​-​)

DI supporters per country

DI opponents per country

Social Democratic Party of Austria (SPO) 1

-​

2

1

Austrian People’s Party (ÖVP)

2

+​; +​

Red-​Green Alliance (EL)

1

+​

4

4

Socialist People’s Party (SF)

1

-​

Social Democrats (SD)

1

+​

Danish Social Liberal Party (RV)

2

+​; -​

Left, Denmark’s Liberal Party (V)

2

-​; -​

Conservative People’s Party (K)

1

+​

The Left (DIE LINKE)

2

+​; -​

5

1

1

2

Social Democratic Party of Germany (SPD) 3

+​; +​; +​

Alternative for Germany (AfD)

1

+​

Coalition of the Radical Left (SYRIZA)

2

+​; -​

New Democracy (ND)

1

-​

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Denmark (8)

Interviewees per party

newgenrtpdf

Interviewed parties

Interviewees per party

Interviewee position on DI (+​/​-​)

DI supporters per country

DI opponents per country

Hungary (6)

Hungarian Socialist Party (MSZP)

1

-​

2

4

Democratic Coalition (DK)

2

+​; -​

Politics Can Be Different (LMP)

1

+​

Movement for a Better Hungary (Jobbik)

2

-​; -​

Save Romania Union (USR)

1

+​

2

3

Freedom, Unity and Solidarity Party (PLUS)

1

-​

Democratic Alliance of Hungarians in Romania (UDMR)

1

-​

National Liberal Party (PNL)

2

+​; -​

Left Bloc (BE)

2

+​; +​

3

1

Socialist Party (PS)

1

-​

1

+​ 19

16

Romania (5) 95

Portugal (4)

Social Democratic Party (PSD) Total

35

Party Views on DI

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Whereas ideology generally appeared a poor guide to positions on DI, country wealth and experience of DI provided two relevant factors shaping respondents’ views. Respondents from wealthier member states tended to be more favourable to DI (11 in favour, six against), while respondents from poorer member states were more divided (eight in favour, ten against). Experience of DI presents a similar picture: respondents with no experience of DI tended to be more favourable (11 in favour, five against), while respondents with experience of DI appeared to look upon DI less favourably (eight in favour, 11 against). Table 4.2 summarizes these divisions. The following two subsections present the parties’ views in qualified support for and opposition to DI respectively, and analyse how these factors informed their responses. (Cautious) supporters

Out of the 19 respondents who viewed DI in a positive light, 16 mentioned pragmatic reasons to support it in its different forms. As far as sovereignty DI and enhanced cooperation were concerned, the main pragmatic reason to support them was their ability to facilitate integration and cooperation in the absence of agreement concerning the direction of the EU. One Austrian respondent, for example, viewed DI as a “pragmatic solution to the problem that we don’t know in which direction we should go” (Respondent 33, ÖVP), while a German respondent praised it as a way to foster “further integration in different fields where not every member state wants to be directly involved” (Respondent 15, SPD). Enhanced cooperation was also appreciated as a way to pioneer new measures by allowing “some countries … to lead progress in the European Union” (Respondent 17, ÖVP, Austria) while also getting these measures “on the plate of the Union in the future” (Respondent 2, LMP, Hungary). Capacity DI was also viewed as positive and necessary, if for different reasons. For some, it was primarily beneficial

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Party Views on DI

Table 4.2: Summary of position on differentiated integration by European Union position, party family, country wealth, and experience of differentiated integration Opponents

Supporters

13

14

Eurosceptic parties

3

5

Far-​left

3

5

Centre-​left

4

5

Centre

4

3

Centre-​right

3

5

Far-​right

2

1

Rich

6

11

Poor

10

8

DI experience

11

8

5

11

Position on European integration

Pro-​EU parties

Left/​right ideology

Country wealth Previous experience of DI

No DI experience

for poorer member states because it provided them with the necessary time to adapt, while others viewed it as a tool to protect the interests of wealthier member states. The responses of a Hungarian and a Danish interviewee are revealing in this regard: while the Hungarian respondent thought DI might be positive if it provided a path for integration for countries “not able or not ready to join the caravan” (Respondent 2, LMP), the Danish respondent stressed that because hasty integration risked having negative implications for member states such as his own, exclusion on capacity grounds was necessary to prevent the rise of Euroscepticism in Denmark (Respondent 19, SD). Overall, pragmatic support for DI appeared primarily among pro-​EU actors of all ideological leanings. For these respondents, sovereignty DI, capacity DI, and enhanced cooperation were necessary to ensure that EU integration could proceed in

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spite of stalling and disintegrative tendencies. As a Hungarian respondent put it: ‘Having the EU in place rather than risking fragmentation or losses like Brexit is certainly good for everyone. And doing the opposite, insisting that everything applies to everyone in the same measure, would slow down integration in a way which would be detrimental … So I think keeping the EU alive … is so important that it’s worth some sacrifice, it’s worth the complication in the legal framework, it’s worth accepting some difficulties in our personal lives.’ (Respondent 6, DK) His position clashed with that of another interviewee from the same party, and was unusual among Hungarian respondents and respondents from poorer member states who tended to oppose DI insofar as they were concerned it would become a way for EU countries to leave them behind. In fact, pragmatic support was concentrated in richer member states, with only six out of 16 pragmatic supporters coming from poorer member states. A slightly smaller number of respondents (14) presented normative arguments in favour of DI, suggesting DI is more than a purely pragmatic solution. Like pragmatic support, normative support was also spread across party families, with pro-​EU and Eurosceptic respondents in parties ranging from the far-​left to the far-​right citing similar reasons to justify their views. This form of support was also evenly spread across countries, with seven supporters coming from richer member states and seven from poorer ones. Normative support appeared primarily in discussions of sovereignty DI. Some respondents praised its ability to protect national diversity, a point made clearly by an Austrian respondent who stated that “a more flexible Europe … is more in line with reality because we have 27 cultures, 24 languages, different historic backgrounds” (Respondent 33, ÖVP). For others, this type of DI offered an opportunity to allow for

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democratic self-​rule. Thus, a far-​left Danish respondent stressed that “this flexibility should be there” because “you shouldn’t impose rules on countries where there is no majority in their Parliament to go that way” (Respondent 12, EL), while a centre-​right Romanian interviewee argued that flexibility was useful because “the governments and politicians of every member state should represent their citizens because those citizens … elected that party on their agenda and objectives” (Respondent 1, PNL). In general, our respondents’ support for DI was, for the most part, conditional and rather cautious. Twelve respondents, for example, acknowledged that sovereignty and capacity DI and enhanced cooperation could have negative unintended consequences, including the creation of an uneven playing field, opportunities for free riding, the establishment of divisions between insiders and outsiders, disintegration, and even threats to national democracies. These risks led most respondents to view DI as an instrument which should be used with caution, and within clearly established guidelines. For several respondents, it was also clear that they accepted DI because it is inevitable, rather than because it is an ideal solution.2 As a German interviewee put it, “in theory I would say the best … would be a fully integrated European Union. … But the reality … for the time being, does not really allow for such a scenario to be a realistic scenario” (Respondent 15, SPD). The risks associated with DI and its perception as a second-​best solution led most respondents to view it as an instrument which should be used with caution, and within clearly established guidelines relating to the EU’s fundamental principles. For example, actors frequently refrained from supporting DI in all areas, considering that one should always evaluate whether DI was appropriate for a given policy and take decisions on a case-​by-​case basis. Policies pertaining to the single market and fundamental values were frequently identified as ones that should remain exempt from all forms of DI (see also Chapter 7). Presenting positions in line with

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the rules for enhanced cooperation enshrined in the Treaties, most interviewees also stressed that the views of outsiders should be heard before establishing an enhanced cooperation, as this would ensure that all member states’ opinions were considered (see also Chapter 6). In short, while in the absence of alternatives pragmatism frequently prevailed, it was normatively delimited. Summing up, a little over half of our respondents expressed a mainly positive view of DI, even though for many it was a second-​best solution. Whereas we could not detect any significant ideological or country trends in normative support, pragmatic support appeared mainly among pro-​EU actors in richer member states, with respondents from poorer countries being generally less favourable to DI. Opponents

Similar to supporters of DI, the 16 opponents also brought forward both pragmatic and normative arguments against DI. These respondents rarely differentiated between sovereignty and capacity forms of DI, suggesting they considered both to have similar effects. Pragmatic reasons to reject DI were mentioned by seven respondents, who worried mainly that DI in any form would be inefficient and end up weakening EU action. With the exception of a Portuguese respondent, pragmatic arguments against DI came from respondents from countries with experience of DI. These respondents tended to draw upon their country’s own experience with DI to explain why they found it problematic. Two Romanian respondents, for example, worried about DI’s negative effects on the single market, with one of them highlighting that his country’s exclusion from Schengen hindered its functioning because it meant that “physical borders still exist, and you need to spend time for your cargos to be checked and so on” (Respondent 18, UDMR).

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Pragmatic concerns were frequently underpinned by normative considerations, mentioned by 15 respondents. Strong drivers of opposition were concerns with the negative effects of DI on fairness (mentioned by nine respondents), political equality (mentioned by 15 respondents), and the EU’s unity (mentioned by 13 respondents). As far as fairness is concerned, respondents stressed that DI created space for free riding, thus limiting solidarity and burden-​sharing. One respondent from Hungary, for example, thought that sovereignty DI gave member states the opportunity to “opt-​out on their duties with regards to the rights of citizens in economic or social issues” (Respondent 5, DK), while another from Romania was concerned that both capacity and sovereignty DI risked deepening divisions and harm the cohesion of the EU project (Respondent 25, PLUS). While one may have expected arguments about fairness to appear especially among left-​wing parties, this was not the case. Arguments about fairness also figured in our interviews with far-​r ight Jobbik, and with the Romanian centrist party PLUS, suggesting that member state belonging has played a role in influencing actors’ assessments of DI. In fact, six out of the nine respondents who worried about fairness came from poorer member states, suggesting the need for fairness was felt most acutely there. As regards political equality, nearly all opponents (15) worried that DI, whether dictated by sovereignty or capacity concerns, might create different tiers of membership or lead to domination of some member states by others. On the first point, most respondents worried that DI created different rights and obligations, potentially leading to the emergence of class A and class B EU citizens. A Romanian respondent, for example, expressed concerns that DI created further divisions between EU citizens, stressing his country’s (capacity-​driven) exclusion from the Schengen Area was “somehow dividing Europe into first-​class and second-​class” (Respondent 18, UDMR). In a similar vein, and revealing the close link

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between concerns about inequality and fears of disintegration, a Hungarian respondent argued that his concern was that by allowing some to go forward, “the others fall behind. … We lose the opportunity to get closer and closer and therefore I think it’s jeopardizing the whole idea” (Respondent 4, MSZP). Like concerns about fairness, these worries were concentrated in poorer member states. In both cases, the discrepancy can be imputed to the fact that respondents from poorer countries were concerned they would be the losers in the process, as this had repeatedly been their experience. A Romanian respondent, for example, viewed DI as form of discrimination to the detriment of poorer member states. To support this claim, he brought forward the example of migrant workers from Romania and Bulgaria, stressing that: ‘A lot of Romanians went abroad … to work in the agricultural sector for wealthy countries. … They are not benefiting in a concrete manner of the possibility to freely move in all the EU member states as Schengen citizens, but when it was necessary for someone to pick up the crops … citizens from Bulgaria and Romania went abroad and exposed themselves to work for the agriculture of other EU member states.’ (Respondent 31, PNL) Tying together concerns about equality and fairness, the quote shows that for the respondent, citizens in poorer member states did not have the same rights as those in richer member states. Thus, he problematized the position of poorer member states, highlighting their perceived inferior status. Concerns about equality emerged also with regard to DI creating domination and were equally spread across party families. A far-​left respondent from Germany, for example, expressed scepticism about enhanced cooperation, viewing it as “an instrument of the more powerful big states” to “introduce institutions and then get them for everyone” (Respondent 10, DIE LINKE). Likewise, Danish respondents were frequently

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sceptical of their own opt-​outs, considering that they led to a situation where, as one respondent put it, “we have no control. We just have to follow the rules that are being negotiated by the other member states” (Respondent 13, V). As was the case for respondents from poorer member states, the main concern was being the losers of these processes. Specifically, they worried that DI, even in temporary capacity form, might create opportunities to exclude them from participating in policies on a long-​term basis and based on arbitrary criteria. For example, Romanian respondents from PLUS and PNL stressed how their accession to Schengen had been halted based on strictly political, rather than objective criteria, while a Greek respondent reported a similar issue, arguing that for Greece and the South, “opting out historically, traditionally has been presented not as a matter of choice, but as a matter of punishment” (Respondent 23, ND). Finally, concerns about DI’s potentially negative implications for the EU’s unity also featured prominently as a reason for normative opposition and were mentioned by 13 respondents of different ideological leanings, but mainly from poorer countries. A Romanian respondent defined it as a “faux ami” which would “dilute the whole idea of European identity and European integration to the point where it will break into pieces” (Respondent 25, PLUS), while a Hungarian respondent saw it as “the first step in the direction of a weakening of the European Union or the European Union falling apart” (Respondent 8, Jobbik). A Danish respondent echoed these concerns, fearing that in an EU where some member states have many opt-​outs, while others are fully integrated, “the distance between these two kinds of member countries is growing so big that in the end we can no longer see a common ground … and we will see a break-​up of the European Union” (Respondent 32, RV). Just as supporters of DI acknowledged its limitations, so most opponents of DI accepted that it could be potentially useful in certain circumstances. Related arguments mirrored closely

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those brought forward by supporters of DI concerning DI’s pragmatic usefulness and its normative advantages, leading some of them to see it as a “necessary evil” (Respondent 13, Denmark, V), which they could accept if no viable alternative was available. Not unlike supporters, their reluctant acceptance of DI appeared to be motivated by the view that in the absence of other options, DI may be a means to multiple normatively desirable ends, such as further integration or the accommodation of the democratic will of national peoples. As such, while generally against it, they were willing to consider it on a case-​by-​case basis. In sum, for a substantial number of our respondents DI is an unwelcome development in European integration. Whereas partisanship did not seem to have a significant influence on opposing DI, their country’s wealth and experience of DI clearly informed these respondents’ critical views. Respondents in poorer countries were particularly worried about being left out of the process of integration against their will, as this had already been their experience. Respondents from wealthier countries were generally less averse to DI, although some of them noted that it created domination (see Adler-​Nissen, 2011) or worried it might lead to disintegration. In short, these respondents highlighted DI’s deeply political nature as a process that creates winners and losers. Conclusion This chapter has shown that DI is a divisive form of integration for our respondents, who were almost evenly divided between supporters and opponents. For supporters, DI appeared as a form of integration that facilitated integration when moving together was not possible, while offering a way to include and recognize the diversity and heterogeneous preferences of European member states and their citizens. Opponents of DI viewed it as a threat to the EU’s efficacy and to key principles of solidarity, equality, and unity. However, both groups were

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frequently torn between their preferences and the options available to them, and were reluctant to endorse or reject DI unconditionally. Supporters tended to back DI conditionally and as a second-​best solution, while opponents acknowledged that DI could be useful in certain circumstances. As such, DI appeared as a deeply political process, generating both pragmatic and normative support and opposition, as well as trade-​offs between what is normatively desirable and what is pragmatically feasible. Our analysis also identified two dimensions affecting their views on DI: namely, the wealth of the member state and prior experience of DI. Indeed, most respondents who opposed DI had experience of it, and came primarily from poorer countries in Southern and Central and Eastern Europe. These opponents expressed concerns that DI might negatively affect their position within the Union, resulting in them being left outside the core of European integration against their will. Likewise, just as support for the EU does not overlap with the traditional left–​r ight cleavage, so support for DI did not overlap with the general support of parties for the EU, or with their positions on the left/​r ight political spectrum. This finding reflects how DI can serve different purposes, depending on whether it is driven by capacity or by sovereignty concerns, and that it likewise can have different (perceived) effects, such as the creation of second-​class citizens or free riding. These different purposes and effects interact more with national circumstances than they do with party politics. Our findings speak well to recent research on political parties and DI, and on public opinion and DI. Concerning the former, they confirm Leruth et al’s (2020) finding that party family does not seem to influence significantly views on DI and corroborate de Blok and de Vries’ (2020) assertion that EU positioning and positioning on DI do not necessarily correlate. Unlike de Blok and de Vries, however, we do not find convincing evidence that left/​r ight positioning matters. Finally, in line with Leuffen et al’s findings on citizens’ views

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on DI (2020), we also find that macro-​regions seem to matter because of the relevance of sociotropic concerns to the assessment of DI: respondents from richer member states in the North were generally more accepting of DI, while those from the East and South were more concerned about its potentially discriminatory implications.

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FIVE

Party Views on the Substantive Fairness of Differentiated Integration

This chapter addresses the substantive fairness of DI, that is, its ability to ensure a just distribution of social and economic goods. The substantive fairness of DI has been subject to some disagreement. While some scholars have noted that DI could have unfair redistributive effects by diminishing solidarity (Michailidou and Trenz, 2018) and creating opportunities for free riding (Adler-​Nissen, 2016, p 242), others have argued it can also allow the EU to respond to growing socio-​economic heterogeneity (Bellamy and Kröger, 2017) and provide opt-​outs for those who would be most negatively affected by a policy or unable to comply with its demands. To understand how political parties perceive of the substantive fairness of DI, we shall analyse their views on whether it is compatible with the principles of impartiality and reciprocity introduced in Chapter 1. We distinguish considerations of fairness that arise from DI that stems from widening the EU from those associated with its deepening. As we noted in the Introduction, the drivers for DI operate differently in each of these contexts, and create divergent incentives for rich and poor, established and new member states. Richer and more established member states are likely to seek exclusions for poorer new members in the context of widening, and exemptions for themselves in the context of deepening. By contrast, new –​and especially poorer –​member states are

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more likely to seek exemptions for themselves and be more ambivalent about exclusions in the context of widening, while being concerned about exemptions for established states in the context of deepening. However, as Frank Schimmelfenig (2014) has shown, rational bargaining by member states in these contexts is constrained by normative concerns. Our findings add to this argument by showing how political actors have different normative perceptions of DI related to whether it stems from widening or deepening, and whether they come from a rich and established member state or a poor and new one. In this chapter, we shall first discuss when different member states might be expected to consider DI substantively fair in the context of both EU widening and deepening. We then move on to the analysis of political parties’ views on the substantive fairness of DI in both these contexts to see how far they match these expectations. In the conclusion, we summarize the findings. Assessing the substantive fairness of differentiated integration When is DI substantively fair? In Chapter 1, we argued that a fair scheme of cooperation is one in which the main political and social institutions are regulated by publicly recognized procedural and substantive rules which the cooperating parties accept that all can and should abide by as appropriate ways of treating them as free and equal (Rawls, 2001, pp 5–​6). Two principles appeared as essential to a scheme being recognized as fair: impartiality and reciprocity. Impartiality refers to the idea that to be fair, cooperation should not be biased towards a given conception of the good and should be impartial as regards different capacities, thereby acknowledging people’s different advantages and disadvantages (Rawls, 2001, p 15). Reciprocity involves all who do their bit in a given collaborative effort being able to benefit to an agreed standard (Rawls, 2001, pp 6, 49n14).

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Political party actors may be expected to assess the substantive fairness of DI differently depending on whether it is being used in the context of ‘widening’ (that is, the expansion of membership to new member states), or in the context of ‘deepening’ (that is, the increased integration of core state competences at the EU level) (Duttle et al, 2017). They may also approach DI differently depending on whether they are from a richer member state or from a poorer one (see Chapter 4). Wealth could be thought to be particularly important to assessments of the substantive fairness of DI because it captures both concerns about redistribution from rich to poor as well as varying levels of capacity to implement measures (Schimmelfennig, 2019, p 182). When it comes to widening, capacity DI plays a crucial role in the EU enlargement process for both poorer (usually newer) and richer (usually established) member states. For poorer, newer member states unable to comply with the costlier elements of the acquis communautaire, temporary exemptions can provide additional time to adapt. For richer, established member states worried about newer member states’ ability to fulfil their duties, or concerned that the arrival of newer member states will generate increased commercial competition and migration, as well as diminishing access to EU funds, the temporary exclusion of newer member states from certain policies can appease these concerns (Duttle et al, 2017). Transitional arrangements that either exclude or exempt new member states therefore facilitate the enlargement process, as they cater both to the needs of newcomers and respond to the concerns that established member states may have (Schimmelfennig, 2014; Schimmelfennig and Winzen, 2014). Whereas political party actors in both established and newer member states may welcome some capacity DI, they may assess the substantive fairness of exclusions and exemptions differently. As far as impartiality is concerned, party actors in poorer member states may think of exemptions and exclusions as fair to the extent that by acknowledging their different

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capacities, they ensure that rules are not too burdensome. When it comes to reciprocity, if these exclusions and exemptions entail a redistributive aspect, or at least reduce inequality between the richer and poorer member states by not putting poorer member states at a disadvantage, party actors in poorer member states may view them as a reflection of richer member states’ positive duties towards them. However, party actors in poorer member states may also view exclusions as unfair on both impartiality and reciprocity grounds. First, they may feel that discriminatory exclusions diminish their equality vis-​à-​vis richer member states and worry about them becoming permanent fixtures rather than simple temporary arrangements. Second, they may worry about exclusions resulting in them being unable to benefit from integration to an agreed standard, or that they become a way for richer member states to avoid fulfilling their duties of fairness towards poorer member states. Party actors in poorer member states may therefore worry that DI could result in deeper inequality and an inability to catch up with richer member states. Party actors in richer member states may feel rather differently about exclusions and exemptions. From the perspective of impartiality, they might question the extent to which poorer member states have different capacities and oppose exemptions on grounds of formal equality (Christensen, 2015). By contrast, and as far as reciprocity is concerned, while they may indeed feel that they have positive duties towards poorer member states, they may also be concerned that certain exemptions might violate the principle if they provide poorer member states with a competitive advantage resulting in unfair competition. In this sense, while they may not object to exemptions as such, they may wish to ensure that they do not end up making their countries worse off than they were before. They may apply a similar reasoning to exclusions, and demand that these be introduced if letting a newer member state take part in a policy would result in them being unable to benefit from the EU to an agreed standard. In sum, while party actors in richer member

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states may support exemptions and exclusions that ensure they keep benefiting to an agreed standard, they may reject those that could either result in unfair competition or in them losing out. DI also plays an important role in responding to heterogenous preferences and capacities when deepening integration. As power is centralized, member states that do not wish to integrate further, either because they do not want to or because they are unable to, may demand DI. Sovereignty DI is usually the result of the former and is frequently demanded by richer member states (although not exclusively, as recent demands from Poland and Hungary show). Capacity DI is usually the result of the latter and is frequently the preserve of poorer member states. Enhanced cooperation can result from both sovereignty and capacity concerns. If capacity DI related to deepening may raise similar issues as those mentioned earlier for impartiality and reciprocity, sovereignty DI is likely to produce additional tensions. First, there is a risk of sovereignty DI and opt-​outs from enhanced cooperation creating extra costs for participants or resulting in free riding, whereby some member states benefit from EU policies but do not pay their fair share. This is likely to be a concern to party actors in both richer and poorer member states, as rising costs and free riding jeopardize the principle of reciprocity for both groups of member states. Party actors in poorer member states may have additional concerns about these opt-​outs becoming a way for richer member states to opt out of their positive duties towards them, or worry about them generating additional costs for their member state which would make it harder to reduce inequalities between richer and poorer member states. However, party actors in both richer and poorer member states might be more willing to accept sovereignty DI on grounds of impartiality, should it be the result of democratic demands from citizens or should it be called upon to protect constitutional values. In this case, there may be a trade-​off between the demands of substantive fairness and those of democracy.

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From the preceding discussion, it appears that party actors in rich and poor member states may have different reasons to consider DI substantively fair or unfair. To study whether this is the case, we coded statements discussing the substantive fairness of DI and sorted them into statements about ‘widening’ and statements about ‘deepening’. Each statement was further coded as referring to a ‘fair’ or ‘unfair’ practice, and then related to the concepts of impartiality and reciprocity. The findings of the analysis are presented next. Is differentiated integration substantively fair? The views of political party actors Widening

Eight respondents addressed the substantive fairness of capacity DI in matters of widening, with six discussing instances in which exclusions and exemptions could be considered fair, and two discussing when they would be unfair. All respondents (bar one) came from poorer member states and drew on their experience of DI to discuss the substantive fairness of DI. Respondents who viewed capacity DI as substantively fair focused exclusively on exemptions and justified their introduction on grounds of impartiality. These respondents considered that exemptions from common rules were necessary in order to respond to the diverse capacities of newer member states and facilitate their integration. Thus, one Austrian respondent presented exemptions as “the only chance for enlargement” (Respondent 17, ÖVP), while a Romanian respondent stressed that: ‘Everything has to be open to negotiation … in a way that allows countries’ specificities and sweetens the demands for some new member states that are not able to fully comply with the requirements of the EU in the first place. Look at Romania and Bulgaria: we were unprepared in

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terms of institutional capacity, democracy, rule of law, to access the European Union in 2007. … Without these opt-​outs … we would not have been a member of the European Union.’ (Respondent 21, USR) Only two respondents from Hungary thought that both exclusions and exemptions in matters of widening could be unfair, and both focused on how these could result in poorer member states being unable to catch up with the richer ones. One respondent considered that the problem with exclusions was that while for richer member states they could be beneficial, “my region’s member states don’t seem to get closer to the standards of living and competitiveness and the differences are increasing” (Respondent 3, Jobbik). Another respondent focused on how Hungary’s temporary exclusion from the Eurozone became permanent (although more for sovereignty reasons than capacity ones) and resulted in “huge financial unfairness between Hungarian citizens and European citizens” (Respondent 4, MSZP). For both respondents, reciprocity was at stake: while the exclusions and exemptions they mentioned responded to their needs, they were not compensated by adequate measures to catch up with richer member states. In sum, whereas ‘exemptive’ (Schimmelfennig, 2014) capacity DI in matters of widening was mainly viewed as substantively fair on grounds of impartiality, two respondents also highlighted how both exclusions and exemptions could generate issues from the perspective of reciprocity. These findings broadly confirm our expectation that poorer member states would be favourable to DI that acknowledged and accommodated their different capacities, while opposing instances of DI which would leave them worse off or unable to catch up with richer member states. Intriguingly, respondents from richer member states did not seem to have any particular views on the substantive fairness of DI in widening. Only one respondent discussed it as a necessity, with all others focused mainly on DI in matters of deepening. It is to this form of DI that we now turn.

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Deepening

All of our respondents addressed the substantive fairness of DI related to deepening. Thirteen respondents discussed instances of fair DI, seven addressed instances of unfair DI and the remaining 15 discussed both. Sixteen respondents addressed issues of substantive fairness in their general assessment of DI. Of these respondents, only four discussed instances in which DI might be substantively fair, and they all focused on exemptions rather than exclusions. Both impartiality and reciprocity played a role in their views. As far as the former is concerned, two of these respondents (one from Germany and one from Portugal) considered that sovereignty DI introduced to respond to constitutional requirements or to democratic demands should be considered substantively fair as a way of acknowledging legitimate differences. For a respondent from Greece, whether sovereignty DI was substantively fair or not would depend on whether it respected the principle of reciprocity. As he put it, only DI “based on the principle of European solidarity and based on the priority of safeguarding the cohesion between the member states and the peoples of Europe” (Respondent 26, SYRIZA) could be considered acceptable. For another Portuguese respondent, DI in general was even essential to ensuring that the EU remain ‘fair’. As she put it, using one-​size-​fits-​all measures would not be fair because: ‘Saying that it’s the same doesn’t mean that it’s not unfair. If you ask an elephant to climb a tree it’s unfair, the elephant cannot climb the tree. … It’s about equity, being the same doesn’t mean that it’s fair. … So, I think this kind of flexible and differentiated policy and way of looking at the European project, it’s really the way of making it fairer.’ (Respondent 29, BE) However, most respondents (13) who discussed substantive fairness in their general views of DI focused on instances of DI

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being unfair. While none of the respondents was concerned about impartiality, worries about reciprocity loomed large. Respondents were most concerned about exemptions (whether due to capacity DI, sovereignty DI, or enhanced cooperation) having an adverse effect on reciprocity. As we had expected, free riding and member states not paying their fair share were a major source of concern for respondents and were mentioned by respondents from both rich and poor countries. These respondents noted how there had been a growth in member states who only wanted to benefit from EU integration and played the sovereignty card whenever they thought a scheme might not benefit them. A Danish respondent, for example, defined his country’s approach as that of a party guest who “just wants to participate in the party and leaves afterwards without helping with any of the less fun stuff.” He added that: ‘[I]‌t should be very clear that if you want to be a member of the European Union you should participate in every aspect of it, and both the hard times as well as the good times. … We do not want to participate in the hard stuff that actually costs money, we do not want to increase the amount that we pay into the EU budget, even though Denmark is greatly benefiting from the European Union.’ (Respondent 32, RV) A few respondents also highlighted more prominently the negative effects of free riding for cohesion and solidarity. A Romanian respondent, for example, considered that sovereignty DI “creates frustration, then in time creates division. And that does not help in the overall cohesion of the particular project that you embark on” (Respondent 25, PLUS), while a Greek respondent considered it “increases social inequalities and affects solidarity” (Respondent 26, SYRIZA). Although we had expected to see this argument emerge mainly in poorer countries, two of the respondents who mentioned solidarity and cohesion came from the German

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left-​wing DIE LINKE and the SPD. As left-​wing parties, it is perhaps unsurprising that they would worry about these issues. Only one respondent considered issues with exclusions and highlighted that any form of DI would be substantively unfair if it would “exclude other members from joining or would be designed to organize the comparative advantage of these core European countries in comparison to the outer ring countries” or if it resulted in “a scenario where the cooperation of the [core] group of countries can also economically create a comparative advantage” (Respondent 15, SPD). To investigate whether respondents problematized DI that generated additional costs for others, thereby violating the principle of reciprocity, we also asked them a series of specific questions concerning when they thought that DI could be allowed.1 Focusing specifically on its economic implications, we asked them whether enhanced cooperation should be allowed in the following cases: if it made participants and non-​participants better off (win-​win); if it made participants better off and non-​participants worse off (win-​lose); and if it made participants better off but made no difference to non-​ participants (Pareto-​improving). We also asked them whether countries could be allowed to opt out of a policy if this increased costs for other member states. Perhaps unsurprisingly, win-​win enhanced cooperation proved to be uncontentious, with 25 respondents considering it to be acceptable, and none opposing it. For one Greek respondent, this was simply how enhanced cooperation should work. As he put it, enhanced cooperation “has to be a win-​win situation. It has to come from an informed decision that this is the better way in a specific area for some countries to go when other countries don’t want to go there” (Respondent 22, SYRIZA). Pareto-​improving enhanced cooperation that left non-​ participants’ financial situation unchanged elicited similar responses, with 16 respondents viewing it favourably and only three respondents opposing it. Those opposing this type of cooperation worried that it would still negatively

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affect non-​participants, and hence violate the principle of reciprocity. The others thought it could work, as long as “it’s not sabotaging them but comparatively, they might be worse off” (Respondent 24, RV). Win-​lose instances of enhanced cooperation were significantly less popular, with only six respondents viewing them as acceptable in principle and 11 viewing them as unacceptable. Relying on the notion of impartiality, the ones who viewed them positively thought that they might be useful in fostering further integration in cases of sovereignty DI, or act as a spur for member states to achieve the criteria to join in instances of capacity DI. The ones who opposed this type of cooperation thought that it would be unacceptable for member states to deliberately put others in a worse situation than they would have otherwise been, as this would run counter to the principle of reciprocity. Thus, a Danish respondent thought that “because the EU is a tribe, a family of 27 members, what some do must not harm the rest” (Respondent 7, K), while a Portuguese respondent thought that “that wouldn’t be fair because as a general principle, I support the idea of cooperation of democracies and solidarity and that would damage the solidarity parts of it” (Respondent 20, BE). While these respondents rarely explained why they opposed win-​lose enhanced cooperation, it is worth noting that nine out of 11 of those who opposed this type of DI were from poorer member states. By comparison, supporters of this form of cooperation were more evenly split, and we noted no significant differences between the views of respondents from rich and poor countries concerning win-​win and Pareto-​ improving enhanced cooperation. Respondents expressed similar views when answering the question of whether an opt-​out should be allowed if it makes a policy more costly. For 12 respondents, this was acceptable, while eight thought that in such cases a member state should not be allowed to opt out. Both groups were roughly equally split between respondents from poorer countries and respondents

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from richer countries, suggesting that no major differences existed between the two. Whereas those who found opt-​outs that increased the cost of a policy acceptable motivated their answers principally on grounds of impartiality, those who found these opt-​outs unacceptable drew more on reciprocity. The former thought in particular that one should not force countries that do not wish to take part in certain policies to do so, as this was ultimately perceived as a matter of national democratic choice. As a Danish respondent put it, “I think that [opt-​outs] should be allowed because I mean, we also have to respect democracy” (Respondent 19, SD). The latter insisted on the idea of shared commitments to oppose opt-​outs, because they considered that being part of a Union demanded that everyone do their bit and that a union where all wanted only to benefit simply would not work. As a Portuguese respondent put it: ‘If we are a community of solidarity, if we want to achieve tasks of development and if we want cohesion among countries, of course for some the policies … can be a little bit more expensive but it’s the fair price for being part of a community based on solidarity and based on development, peace and cohesion among countries.’ (Respondent 28, PS) Summing up, both impartiality and reciprocity played a role in party actors’ views of the substantive fairness of DI in matters of deepening. From the perspective of impartiality, respondents acknowledged that member states should be allowed to resort to DI to protect their constitutional values or to avoid participating in policies they wanted to stay out of or were not ready to join, even if this might generate additional costs for others. However, several respondents were concerned about DI affecting the principle of reciprocity. They were worried that DI could result in free riding and affect solidarity between member states, and were generally reluctant to approve of enhanced cooperation that left some worse off.

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Table 5.1 summarizes the views of political party actors on the substantive fairness of DI in deepening and widening. Overall, the table shows that while there were some differences in matters of widening, there were generally few differences between the views of respondents from richer and poorer member states, suggesting that they approached these questions in a similar fashion. Importantly, the table also suggests that there may be a trade-​off between impartiality and reciprocity. In fact, whereas DI appeared as generally justifiable on grounds of impartiality, it posed several issues from the standpoint of reciprocity. To be substantively fair, then, DI should ensure an acceptable balance between the two principles. Conclusion This chapter has explored how political party actors assessed the substantive fairness of DI in matters of widening and deepening based on the principles of impartiality and reciprocity. Our findings show that as far as widening is concerned, most respondents viewed DI as substantively fair on grounds of impartiality, although a small number of them raised issues about its relationship to reciprocity. When it comes to deepening, we found respondents more divided concerning the fairness of DI. Even though they acknowledged that DI may be needed to ensure that European cooperation respects the principle of impartiality, they also worried about free riding and DI diminishing solidarity or creating additional burdens. While we had expected to see rich and poor member states make different arguments to assess the substantive fairness of DI, we found that this was not always the case. As far as widening was concerned, although we correctly expected that poorer member states would be favourable to DI that acknowledged and accommodated their different capacities, we found no evidence of richer member states opposing exceptions or supporting exclusions. Indeed, the latter barely addressed DI in widening. As far as deepening was concerned, we found

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Table 5.1: Summary of positions on substantive fairness of differentiated integration Widening

Deepening Exclusion

Exemption

Rich member states

N/​A

Fair when it responds to diverse capacities of member states (impartiality)

Unfair if it creates competitive advantage or unfair competition (reciprocity)

Fair when: • it responds to different wishes and needs of member states (impartiality) • it makes everyone better off or no one worse off (reciprocity). Unfair when it generates free riding or additional costs for others, and when it limits solidarity (reciprocity)

Poor member states

Unfair when it does not allow the poorer to catch up/​ leaves them worse off (reciprocity)

Fair when it responds N/​A to diverse capacities of member states (impartiality). Unfair when it does not allow poorer member states to catch up/​leaves them worse off (reciprocity)

Fair when: • it responds to different wishes and needs of member states (impartiality) • it makes everyone better off or no one worse off (reciprocity). Unfair when it generates free riding or additional costs for others, when it limits solidarity or leaves some worse off (reciprocity)

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Exemption

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many similarities in the arguments brought forward by richer and poorer member states. The only exception was that poorer member states appeared to be significantly more sceptical of enhanced cooperation that left some member states worse off, suggesting, perhaps, that they were concerned that they would be on the losing side of the equation. Finally, our findings suggest that there may be a trade-​off to consider between reciprocity and impartiality in matters of substantive fairness. In fact, while impartiality may demand that DI be introduced to accommodate the needs and wishes of different member states, reciprocity suggests that this should be done in such a way that cooperation remains beneficial for all.

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SIX

Party Views on the Democratic Dilemmas of Differentiated Integration

This chapter addresses the concern that DI might undermine political equality among member states, thereby creating the possibility for some member states to dominate others. We relate this concern to what Max Heermann and Dirk Leuffen identify as a gap in the literature on DI –​namely, the degree to which it has ‘remained remarkably silent with respect to questions of institutional design’ (Heermann and Leuffen, 2020, p 2). This silence is surprising given that DI can impact the institutional structure and decision-​making processes at the EU level, potentially impairing their democratic character. We explored these issues through an analysis of the views political party actors have of DI’s dominating potential. We asked whether they perceive DI as creating domination, and how they consider its dominating potential might be mitigated through appropriate forms of governance for differentiated policy areas. The text unfolds as follows. We start by setting out the democratic dilemmas of DI from a theoretical perspective. The ensuing empirical analysis engages with party actors’ views in regard to the institutional impact and governance structures of DI. The conclusion discusses the findings’ wider implications for the institutional design of DI.

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The democratic dilemmas of differentiated integration How does DI relate to domination? Following Philip Pettit, we define domination as the capacity of an agent or agency to arbitrarily impose or influence another agent(s) or agency(s) to do their will, without having to deliberatively engage with or consider the reasons and interests of the dominated (Pettit, 2010, pp 73–​5, 77–​9). The potential for such domination arises from the conjunction of three circumstances –​an imbalance of power, dependency, and the unconstrained or discretionary rule of an agent or agency (Lovett, 2010, pp 119–​20). By implication, a condition of non-​domination involves a democratic community in which each member –​in the case of the EU either an individual citizen or member state –​has an equal status in determining its collective policies and common rules and must involve the others when formulating them, none is dependent on any of the others, and all are equally affected by the overall package of rules and policies, if not necessarily by every single one of them (Bellamy, 2019, pp 69, 90–​3). For DI to be perceived as non-​dominating, therefore, its institutional design must avoid creating political inequalities that produce imbalances, dependency, and the capacity for one state or group of states to impose policies or rules on others without consulting them on an equal basis (Bellamy, 2019, ch 6). To achieve this result, this design must give all member states subjected to a given EU policy equitable influence and control over collective decision-​ making in that area, sufficient to ensure their views and interests are shown equal respect and concern. Meanwhile, member states affected by, but not participating in, the policy should be able to defend the core EU rights of their citizens and not have their scope for self-​determination arbitrarily diminished. On this account, two institutional issues arise with sovereignty DI, capacity DI, and enhanced cooperation. The first concerns their respective impact on the EU’s institutional structure and decision-​making arrangements, and the degree to which they reduce or enhance the possibilities for one state

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to dominate another. The second concerns whether a given form of governance for DI might mitigate the possibilities for domination. With regard to the first issue, all three types of DI involve a potential trade-​off between a gain in self-​determination or the recognition of diversity at the national level, on the one hand, and a loss of equality in decision-​making at the EU level, on the other hand. Whereas the former might reduce the possibility of domination by increasing the scope for decision-​making that respects national differences, the latter may enhance it by increasing the likelihood of a member state being affected by, or even becoming dependent upon, decisions that do not consult their national interest on an equal basis to those of other member states. Sovereignty DI may be viewed as acknowledging and accommodating differences between member states. While equal concern and respect entails treating like cases alike, it also involves treating relevantly unalike cases differently (Dworkin, 1977, p 227; Kymlicka, 1995). Consequently, to avoid domination diversity can, and arguably should be, accommodated by flexible arrangements concerning specific policies and processes (Bellamy and Kröger, 2019). However, sovereignty DI should still ensure that the core rights associated with common citizenship of the Union remain equally available to all EU citizens. Sovereignty DI is also attractive in giving space to those who wish to integrate further to do so, without forcing reluctant countries to participate. Non-​domination in this respect is a two-​way street –​those reluctant to integrate in a given area are not obliged by other member states to do so, but neither can they hold others back. However, a member state exercising an opt-​out may still be affected by an EU policy they now have no say in determining and might have preferred that the EU had not undertaken. In this case, domination may result from exclusion from relevant decision-​making processes. Capacity DI proves similarly double-​edged. It too can be regarded as recognizing how treating member states and

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their peoples as equals can entail recognizing their relevant differences. In cases where some member states find it particularly challenging to follow common rules, DI may be viewed as an arrangement that fosters equality by acknowledging that universality of rules and policies may deepen, rather than overcome, certain inequalities. However, capacity DI has typically involved newer member states being excluded at the point of accession from participating in common policies, such as Schengen or the euro, that they may have wished to join. Although evidence suggests that ‘discriminatory’ differentiation of this kind has been less frequent than more benign ‘exemptive’ differentiation (Schimmelfennig, 2014), a common concern among Central and East European member states has been that capacity DI may deepen existing divides in the EU and lead to the creation of ‘A’ and ‘B’ citizens and states in the Union (Chopin and Lequesne, 2016, pp 539–​40). Unless flanked by strong mechanisms of transparency and participation for outsiders, and a clear pathway for them being able to join the policy eventually should they wish to do so, capacity DI could lead to a negative demarcation between the ‘insiders’ and ‘outsiders’ of integration, entrench divisions between them (Leruth et al, 2019, p 1386), and reduce mutual trust between member states (Adler-​Nissen, 2011; Michailidou and Trenz, 2018). Even more than sovereignty DI, therefore, capacity DI has a dominating potential, whereby an inner group of EU member states can condemn newcomers to an inferior peripheral status (Fossum, 2015). Enhanced cooperation, finally, can be associated with both sovereignty and capacity DI on the part of non-​cooperating member states and so raises similar issues. However, it takes place under a procedure laid down in the Treaties. As such, it brings us to the second issue –​that of governance, and whether certain procedures for allowing DI and making decisions regarding those policies areas where it occurs can mitigate its dominating effects. For example, whereas the existing procedure to establish an enhanced cooperation

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arguably involves sufficient consultation between ins and outs to avoid the process for establishing DI to be itself a source of domination (although it may still display some dominating tendencies, for example, Kroll and Leuffen, 2015), this is not necessarily the case with sovereignty and capacity DI introduced as the price for agreement by a member state in Treaty negotiations, or imposed by existing member states to reduce the costs of admitting newer member states in accession negotiations. As far as governance of all three types of DI is concerned, it is unclear which decision-​making processes in the affected policy area in the Council and EP might best ensure that ins and outs are treated with equal respect and concern. From the perspective of non-​domination, the current set-​up in which all MEPs within the EP can vote on differentiated policies, but only member states taking part in them can vote in the Council (although they may take part in deliberations preceding votes), is not entirely unproblematic. As far as the EP is concerned, it means that MEPs from non-​participating member states vote on legislation that does not apply to their constituencies. As such, this practice results in a mismatch between the territorial scope of EU policies and the composition of the legislature (Heermann and Leuffen, 2020, p 3), potentially leading to domination by giving a disproportionate say to those who are not subjected to a policy. However, dividing the EP may be equally problematic. As Deirdre Curtin and Cristina Fasone (2017) note, separate voting arrangements would violate the principle of equality by creating ‘second-​ order MEPs and implicitly recognize second-​order European citizens represented in the EP’ (Curtin and Fasone, 2017, p 130). Thus, neither system appears entirely satisfactory. When it comes to the Council, the risk with the existing system is that states that do not participate in enhanced cooperation, or are temporarily excluded because they fail to meet certain criteria, or that have a permanent opt-​out, may still have a stake in policy decisions on which they have no say because of their

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implications for the future scope and functioning of the EU, yet have to rely on insiders for their voice to be heard. This risk proves especially pertinent when exclusion is involuntary (for example, Adler-​Nissen, 2016). To explore political party actors’ views on these issues and ascertain whether they consider DI to create domination, interview answers pertaining to the institutional design of DI were sorted into views on the institutional impact of different types of DI arrangements, and views on governance. Following Lovett’s (2010, pp 119–​20) definition of the sources of domination, these statements were analysed to see whether actors thought that different types of DI gave rise to (or limited) domination in the form of imbalances in power; dependency, and/​or unconstrained or discretionary rule. The findings of the analysis are presented in the following section. How democratic is differentiated integration? What party actors think This section undertakes two tasks. First, it explores how far political actors considered domination to be an actual or potential problem with regard to DI. Second, it examines whether they thought the current governance structures were adequate to reduce this possibility. Creating domination? The perceived institutional impact of differentiated integration

Respondents’ overall views of DI were divided between those who saw it in an exclusively positive light (14), those who viewed it in an exclusively negative light (9), and those who expressed mixed assessments (12). Confirming the view that different types of DI raise different issues, respondents expressed varying assessments of DI depending on whether they were discussing sovereignty DI, capacity DI, or enhanced cooperation. Thirty-​one respondents expressed an opinion

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on sovereignty DI. These respondents were divided between those who thought this type of DI did not generate domination (16) and those who thought it did (8). The remaining seven respondents expressed views in both directions. Only 11 respondents discussed capacity DI, with seven of them mentioning it as a source of arbitrary exclusion and growing inequality, three considering it may facilitate integration, and one mentioning both possibilities. Actors’ assessment of the institutional impact of enhanced cooperation was mainly positive: 17 viewed it as a way to respond to member states’ diverse preferences, while only eight suggested it could have negative implications for equality and self-​determination. One respondent mentioned both aspects. Views of DI as dominating or non-​dominating were evenly distributed across political parties and countries, suggesting positions on DI do not align well with the key cleavages associated with European integration more generally. While left-​wing respondents were marginally more sceptical about sovereignty DI than respondents from other parties, as in Chapter 4 most party families and several parties were split on the issue. A somewhat clearer trend emerged concerning capacity DI, which found little favour with respondents from poorer member states. Finally, enhanced cooperation was viewed in a positive light by most respondents. However, Eurosceptic respondents of the left and of the right, and several respondents from Central and Eastern Europe, were slightly more inclined to oppose it. Respondents who considered sovereignty DI to have a positive institutional impact focused on its ability to accommodate the wishes and needs of member states and their citizens. These respondents thought DI’s main appeal lay in permitting member states that wished to integrate further to do so without either forcing everyone to integrate together, or allowing reluctant member states to form a blocking minority. A Danish respondent, for example, thought “it wouldn’t be fair” if Denmark “could block all or veto that other member states

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could go further in integration if they want to” (Respondent 13, V). Other respondents considered DI inevitable because, as a Portuguese interviewee put it: “We cannot wait for some states that have their own idiosyncrasies in internal, national policy. So, it’s perfectly acceptable that some countries don’t want to go further in integration, that’s okay, but that decision cannot block … the others that want to go further” (Respondent 35, PSD). While these answers may be viewed as pragmatic responses to potential vetoes, they also reflect a view of the EU as involving voluntary cooperation between member states of equal standing, entitled to integrate further or not. Unsurprisingly, similar sentiments emerged among the smaller group of respondents stressing the potential of sovereignty DI to accommodate the wishes of citizens not to integrate further. Most respondents raising this point came from Denmark, reflecting their experience with DI as what citizens, rather than governments, desire (for example, Adler-​Nissen, 2011). These respondents understood DI as an essential part of their membership, making it possible for them to be part of the project while respecting the results of Danish referendums concerning integration. As one respondent put it, “our opt-​outs are the foundation of our membership … the Danish population have made their opinion clear, so we want to respect that” (Respondent 19, SD). Of the 15 respondents considering the negative effects of sovereignty DI, half worried that DI could become a tool of non-​democratic governments, an issue we will return to in Chapter 7. Most of these respondents came from the left and far-​left, and could be expected to oppose right-​ wing governments violating liberal-​democratic principles (Sedelmeier, 2014, p 119). The other half worried that this type of DI could lead to member states being negatively affected by decisions they have no say in making. Capacity DI was addressed less frequently than sovereignty DI. Only 11 respondents discussed it, and they mainly focused on its potential negative implications. The few respondents

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who focused on its positive aspects stressed its role in facilitating the integration of newer member states by avoiding one-​size-​ fits-​all arrangements. One respondent from Romania, for example, considered capacity DI “the key to enlargement. We cannot reach out to new member states … without allowing some opt-​outs given the specificity of … countries that are newcomers” (Respondent 21, USR). However, while capacity DI found some acceptance as a means of treating all as equals by treating dissimilar states in different ways, most respondents raised concerns that instead of facilitating integration, capacity DI might create different tiers of membership, with some EU member states and citizens having more rights than others. All respondents who problematized this aspect came from the poorer, peripheral member states, suggesting that this concern was most acute among those who had been excluded from EU policies in the past and were worried about being left out of the core of European integration. A Greek respondent said this very clearly when he mentioned that his party’s scepticism about DI was led by the fear that Greece could be “forced to be left out” (Respondent 23, ND), as had initially been the case with EMU. Actors’ assessment of enhanced cooperation followed similar patterns to their assessment of sovereignty and capacity DI. While 18 respondents viewed it primarily in a positive light, nine also suggested that it could have negative implications for equality at the EU level or national self-​determination. The most appealing aspect of enhanced cooperation appeared to be its allowing those who wish to integrate further to do so. A Portuguese interviewee, for example, thought that it was “a way to go further if you want to go and not going if you don’t want” (Respondent 29, BE). A Hungarian respondent also saw it as a response to different member states’ preferences concerning integration. Given growing scepticism about integration in some countries, he argued, countries who wished to integrate further would have to either abandon joint policies, or

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‘[T]‌ry to find a more flexible framework for this type of reinforced cooperation. And I think … they are not going to abandon their wish for further integration. … If the Eastern European countries don’t want that, then they have to stand aside and let the others go ahead.’ (Respondent 6, DK) Respondents who opposed enhanced cooperation worried that it might harm the equality of European citizens and result in the domination of some member states over others. Respondents from Central and Eastern Europe, for example, thought that enhanced cooperation could only be allowed if it did not create divisions between a ‘core’ Europe and the rest because “then we would go back to the first-​class citizens, second-​class citizens, third-​class member state” (Respondent 18, UDMR) and that it should not become a way for a number of countries to “move on and to leave everyone else behind” (Respondent 8, Hungary, Jobbik). Reflecting a concern that enhanced cooperation might lead to further (unwanted) integration, more Eurosceptic actors stressed that enhanced cooperation might result in a situation where certain member states would be able to impose their preferences on others. As a Portuguese respondent put it: ‘As states are not all equal in political power and in economic weight … having an … enhanced cooperation … means that we have a club of the strongest countries that decide very important policies. And … if the others are not in this more integrated process, they will have to follow because this cooperation will end up influencing all the European Union and the others will not decide but will be affected by it.’ (Respondent 20, BE) These findings demonstrate that while respondents did not speak directly about domination and non-​domination, their views reflected the relevance of these concepts to the analysis

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of the implications of different types of DI for the EU’s institutional structure. They show that under certain conditions DI may be perceived as a way to tackle the roots of domination by responding to the heterogeneous wills and needs of different member states. However, the findings also confirm DI’s nature as a double-​edged sword which might also enable autocrats or result in arbitrary exclusion and the creation of different classes of membership. Mitigating domination: institutional set-​up and governance structures for differentiated integration

A central factor in responding to the more critical voices is the establishment of clear criteria for accession to differentiated policy areas, and appropriate voting arrangements for them in EU institutions. The discussion of criteria for introducing and governing DI was an important aspect of our respondents’ views. Almost all respondents (30) expressed views on the rules DI should respect to be considered a non-​dominating form of cooperation. Most respondents (26) stressed that there should be no arbitrary exclusion against a member state’s will. However, 22 respondents accepted that there could be stringent criteria (such as those governing accession to the euro) for access to these cooperations. Nevertheless, 17 stressed that policies should remain open to those who wish to join provided they meet the criteria, and that arbitrary exclusion could not be permitted. One German respondent, for example, thought that it was very important that policies “remain open for others to join, based on clear, transparent and fair criteria” (Respondent 15, SPD), while a Greek respondent thought it acceptable to set up an enhanced cooperation only “provided that it’s an open door, that everybody can join if he or she wants to. It doesn’t work as an exclusionary club” (Respondent 23, ND). The issue of arbitrary exclusion was felt most strongly in the context of access to the Schengen

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area. Most Romanian respondents, for instance, were very critical of their country not having been able to join. One expressed his frustration, saying that: ‘You have processes where the rules are clear … therefore if you push this lever, this happens and if you pull that lever, that happens. And then there are processes like Schengen where you have no idea where the levers are, whether you need to push or pull. … It’s an esoteric political process where you just need to convince certain governments to politically do something different. And that is a process that is unfair.’ (Respondent 25, PLUS) With regard to the governance structures and voting arrangements in the EP and the Council of the EU, our respondents expressed a marked preference for the status quo, with just under half of them (17) considering that while in the Council only those taking part in a policy should vote, in the EP, all MEPs should vote. The remaining respondents were divided between those who thought that all members of both the EP and the Council should vote in instances of DI (5), those who thought that only MEPs and member states taking part in a policy should be involved in decision-​ making (3), and those who only had a view on one of the two institutions (10). The latter group generally expressed a preference for the status quo. The respondents who thought that only member states participating in a policy should vote in the Council in cases of DI did not always explain why. The few who did develop their answers argued that only those directly subject to policies should be allowed to vote. A Hungarian respondent talking about the euro, for example, stated that “you cannot expect that you will gain a say on what the other countries … should be doing” (Respondent 6, DK). These views were frequently entwined with an understanding of the Council as a body dedicated exclusively to the representation of member states’

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views and functionally separate from the EP. As one Danish respondent put it: ‘[T]‌here is a difference between the Council and the Parliament. The Council is where the countries represent themselves and their own interests. … In the European Parliament, I don’t argue that Denmark wants this, or Denmark wants that, so I think we should have one Parliament for the whole of Europe.’ (Respondent 19, SD) A quarter of the respondents (9) suggested that there should also be a way to involve those not participating in a policy in deliberations, as they may still be affected by it. One Portuguese respondent, for example, argued that even if a country is not subject to a policy, “everything that affects the whole system affects you, so you have to have the possibility to talk about it and to reflect about it and to have a position about it” (Respondent 29, BE). The sense of a functional separation between the Council and the EP emerged most clearly in responses to the question of whether the EP should vote as a whole in instances of DI. Respondents frequently opened their answers to this question by stressing that they thought the Parliament was different, and contrasting its role with that of the Council. As with the Danish respondent cited earlier, they believed the Council and EP obeyed different logics, making it acceptable to have a different and more inclusive voting system in the EP. As a Portuguese respondent put it: ‘Instinctively I would say that it would be unacceptable to create various categories of MEPs. It’s different when you say that some countries cannot vote because somehow you are creating a different framework of institutions for those areas, but in the European Parliament it’s tougher to have the same answer because it’s the same institution.

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All the MEPs have the democratic legitimacy to be there.’ (Respondent 35, PSD) Most respondents were reluctant to see divisions emerge in the EP, as they viewed it as a supranational body and the representative organ for European citizens. This point reflects a broader concern with the equality of MEPs which emerged from some respondents. They stressed that since all MEPs were elected on an equal basis, it would be illegitimate to create divisions between them, because, as a Greek respondent put it, “when someone is elected through the electoral process you cannot deprive him or her of voting rights” (Respondent 26, SYRIZA). Respondents who thought the Council as well as the EP should vote in their entirety on differentiated policies showed comparable concerns to those who did not, despite their different conclusions concerning ideal voting procedures. Those advocating involving both bodies fully in decision-​making on DI appeared to be primarily worried about the creation of new boundaries and their potentially disintegrative implications. In line with findings from the previous section, four out of five of these respondents were from Central and Eastern European countries, highlighting their concerns of being left out of further integration. Respondents favouring having only those involved voting in both bodies did not fully explain their choices, although one Austrian respondent in this group was generally sceptical of the EP taking part in any decisions on DI, as he understood these to be primarily intergovernmental agreements (Respondent 33, ÖVP). In sum, respondents indicated certain procedures as desirable to mitigate potential domination through DI’s set-​up and governance. Clear criteria were a key factor, because they ensured that differentiated processes remained genuinely open, and that exclusion was not the result of an arbitrary decision. The involvement of the Council and EP also appeared to be

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important, although most actors thought these two bodies should vote in different ways. Conclusion In the foregoing, we have investigated party actors’ views on DI to study how they perceived its dominating potential, and how they considered its governance should be designed to respect the principle of non-​domination. Party actors thought that different types of DI raised different issues. They viewed sovereignty DI as a way to accommodate legitimate differences and preferences concerning integration, but also worried it might facilitate autocratic rule and result in some member states not getting a say in matters that potentially impact them. Capacity DI was assessed more negatively: while a few respondents viewed it as a legitimate way of treating unequals unalike, others deemed it to be a source of inequality. Enhanced cooperation raised similar issues, with some considering it an appealing way to allow some to go forward when others were more reluctant, and others considering it as deepening divides between member states and leading to some member states deciding policies without consulting others. While most of these views were evenly distributed across countries and across parties, left-​wing respondents tended to be more sceptical about sovereignty DI, while respondents from poorer member states expressed more doubts about capacity DI. Finally, although enhanced cooperation was generally well-​received, Eurosceptic actors and several respondents from CEE regarded it somewhat negatively. In order to mitigate these issues, respondents also discussed the principles DI should respect in its governance. They insisted that exclusion from policies should not be arbitrary, and that DI should remain open for all to join, based on clear criteria. Most also believed that the current voting arrangements in the EP and Council were broadly acceptable. In the Council, respondents considered the ‘all-​subjected’ principle should

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apply, although several also believed that there should be a way for the other member states to have a say. For the EP, respondents argued that it should always vote in its full composition. Following a similar reasoning to Curtin and Fasone (2017), respondents were worried that dividing the EP would create power imbalances between citizens as well as between their representatives. This arrangement may not be ideal (for example, Heermann and Leuffen, 2020); however, it appears to be by and large accepted by political actors.

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SEVEN

Party Views on Democratic Backsliding and Differentiated Integration

Political parties have played an ambivalent role in regard to democratic backsliding. On the one hand, the literature has noted how in the EP, the European People’s Party (EPP) and (to a lesser extent) the European Conservatives and Reformists (ECR), backed by some of their constituent domestic parties, have undermined EU efforts by other parties in the EP as well as the European Commission to address democratic backsliding in Hungary and Poland (Kelemen, 2017; Kelemen and Pech, 2019; Meijers and van der Veer, 2019; Herman et al, 2021). On the other hand, research has also shown that political parties can exert peer pressure on backsliding parties, and help bring them back into the democratic fold (Sedelmeier, 2014). DI has been viewed by some as having a similarly ambivalent relation to democratic backsliding. We have discussed in Chapter 3 the argument that DI provides backsliding governments with dangerous legal tools to justify their practices. Whereas Daniel Kelemen and Laurent Pech have been strong proponents of this view (Kelemen, 2019; Kelemen and Pech, 2019), we have argued that DI, along with constitutional pluralism, actually supports the values of constitutional democracy under attack by governments engaging in democratic backsliding. In this chapter, we focus on how political party actors conceive of the EU and DI’s role in matters of democratic backsliding, and what factors motivate their views. Complementing our

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interview material with a survey of 42 party actors (see the questions in Appendix C), we analyse whether they perceive democratic backsliding to be a problematic issue, if they consider DI responsible for it, and how they think the EU should respond to democratic backsliding. The chapter starts by identifying the party political factors that have stood in the way of EU intervention and discussing how they may shape political party actors’ views concerning the relation between the EU, DI, and democratic backsliding. These factors are then explored empirically in the following sections. The conclusion summarizes the findings. Democratic backsliding and the European Union Following recent developments in Hungary and Poland, democratic backsliding has emerged as a key concern in European politics. In spite of the issues that democratic backsliding presents for its effectiveness and legitimacy (see Chapter 3), the EU’s response has been hesitant, leading scholars to ask why the EU has not intervened more forcefully against backsliding member states (Kelemen, 2017, p 2; Meijers and van der Veer, 2019, p 839). This has led them to highlight the political factors that allow democratic backsliding to go virtually unchallenged. We draw on the respective literature to develop some expectations concerning political party actors’ views on whether democratic backsliding is a problematic issue, if DI can be linked to it, and how it should be addressed. Party political strategic and ideological considerations occupy a prominent place in the literature explaining the EU’s slow response to democratic backsliding. From a strategic perspective, researchers note how some parties have stood in the way of further EU intervention against backsliding due to concerns that this would harm them politically (Meijers and van der Veer, 2019; Herman et al, 2021). The case of the EPP is telling: while the party group has been reluctant to support EU action against Hungary, it has been much keener

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to support intervention in Poland. The difference in approach is due to Fidesz having been a member of the EPP until March 2021 while Prawo i Sprawiedliwość (Law and Justice) is a member of ECR and thus does not enjoy the protection of the largest fraction in the EP. The EU’s incomplete politicization, as well as the prevalence of the norm of sovereignty, have been held responsible for creating the incentives for this type of behaviour (Kelemen, 2019). For one, EU politics are sufficiently politicized for mainstream parties to gain from having the votes of MEPs from backsliding member states, but not sufficiently so as to create the space for domestic opposition to their support for autocratic regimes (Kelemen, 2019). Furthermore, political parties are still reluctant to intervene in the domestic affairs of other member states due to concerns about sovereignty (Schlipphak and Treib, 2017). Therefore, we would expect members of the EPP and ECR to be less willing to acknowledge democratic backsliding as a problematic issue, as doing so might reduce their numbers and weaken their position in the EP. Conversely, we would expect political parties that are not part of the EPP or of the ECR groups to be significantly more willing to address democratic backsliding, as they would benefit politically from a weakening of these competitor party groups. From an ideological perspective, it has been noted that certain parties, in particular those on the right of the green-​ alternative-​libertarian/​traditional-​authoritarian-​nationalist (GAL/​TAN) or ‘cultural’ left/​r ight scale (Herman et al, 2021, p 12) oppose EU intervention because of their beliefs. Maurits Meijers and Harmen van der Veer (2019) and Lise Herman, Julian Hoerner, and Joseph Lacey (2021), for example, show that TAN and Eurosceptic parties are more likely to oppose EU intervention than GAL and pro-​EU actors. The former typically have less qualms about democratic backsliding in virtue of their authoritarianism, and/​or consider EU intervention to be damaging to the national sovereignty of individual member states. Conversely, the latter normatively oppose a slide towards

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authoritarianism (Sedelmeier, 2014), and/​or consider EU action to be justified because of the negative implications of democratic backsliding for European integration. As a result, we may expect political parties whose ideology is nationalist and authoritarian, such as far-​r ight parties (Mudde, 2019), to be less inclined to view democratic backsliding as a problematic issue than parties of the centre or the left. It is more complex to set expectations concerning how political parties conceive of DI’s role as regards democratic backsliding. Both actors who oppose democratic backsliding and those who are engaged in it might link the two, albeit for different reasons. Strategically, backsliding governments (and their enablers) may view it as a legitimate tool to justify their undemocratic practices. These actors may be particularly willing to argue that DI can be used in all policy areas, including those that might result in democratic backsliding, such as opt-​ outs from Article 2. Poland’s reform of the judiciary provides one such example. While it was an obvious violation of the principles enshrined in Article 2, the Polish government insisted on its right to derogate from common rules, including fundamental values, on grounds of constitutional identity (Chancellery of the Prime Minister, 2018; Polish Ministry of Justice, 2020). Conversely, the actors who oppose them may object to having DI in all areas of policy, as they are aware of the risks allowing it would entail. Ideological factors may reinforce these tendencies. Most notably, TAN parties may be more willing to accept DI in all areas, viewing it an expression of national sovereignty, while GAL parties may prefer to limit DI because of their commitment to fundamental liberal-​ democratic values. Therefore, we might expect party actors from the EPP and ECR and on the TAN side of the spectrum to be more open to using DI in all policy areas, including the fundamental values. Conversely, we would expect respondents from other political groups and GAL parties to consider that DI should not be allowed in the areas pertaining to Article 2 as this would facilitate backsliding.

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However, this latter groups’ views on DI in general may also affect whether they view DI as facilitating democratic backsliding. Parties opposed to democratic backsliding but generally supportive of DI may understate the link between DI and democratic backsliding and argue that using DI to justify democratic backsliding is illegitimate. By contrast, parties opposed to both DI and democratic backsliding may draw upon evidence of a member state using DI to justify democratic backsliding to motivate or double down on their opposition to DI. Because of this, we would expect actors critical of DI’s effects on the uniformity of EU law (Curtin, 1993) and on the EU’s values to be more likely to connect it with democratic backsliding. Finally, strategic and ideological factors can be expected to shape how political party actors think the EU should address democratic backsliding, or even whether they consider it should intervene at all (see Chapter 3 for a discussion of these issues). Political party actors from the EPP and ECR groups, as well as those from TAN and Eurosceptic parties, may be expected to oppose further EU intervention and recommend national solutions to prevent the EU from excessively impinging on national sovereignty or diluting their power in the EP. Conversely, one could expect political party actors from other EP party groups, or of a GAL and pro-​EU ideological leaning, will be more likely to support stronger EU intervention to counter democratic backsliding. In what follows, we explore these dynamics through our interviews and a survey of 42 political party actors (survey questions presented in Appendix C) which allowed us to triangulate the findings from the interviews. Even though our interviews centred exclusively on DI, they are nonetheless well-​ suited to our interest in the relationship between the EU and democratic backsliding. First, because the interviews focused on DI rather than democratic backsliding, they help us gauge the extent to which democratic backsliding spontaneously comes up as a problematic issue for political party actors and

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how they frame it. Furthermore, because the literature has been divided concerning whether DI may facilitate democratic backsliding, they help understand the extent to which these two phenomena are connected in the views of political party actors. Finally, because we asked respondents about how member states who do not want to respect key common principles should be sanctioned, the interviews also provide us with insights into how backsliding may be addressed. The European Union, differentiated integration, and democratic backsliding: the view of party actors What do political party actors think about the relationship between democratic backsliding, DI, and the EU? In this section, we tackle this question by looking at three issues: • Do the actors address democratic backsliding, and do they consider it a problematic issue? • Do they view DI as part of the problem? • How, if at all, do they propose that the EU deal with democratic backsliding? The problem: is democratic backsliding a problematic issue, and why?

We have argued in Chapter 3 that democratic backsliding is problematic for the EU because it hinders both its effectiveness and democratic legitimacy. In what follows, we explore whether party actors agree that democratic backsliding poses a problem for the EU. Our survey indicates that most political party actors take the view that democratic backsliding is taking place. Out of 42, 36 (88 per cent) respondents considered that some EU governments were ‘failing to uphold fully the Rule of Law and democratic principles such as free and fair elections, basic civic and political rights and judicial independence’, while

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only five thought this was not the case and one chose not to answer. Furthermore, most actors considered this to undermine the EU’s effectiveness and its democratic legitimacy. Thirty-​ eight respondents (90 per cent) agreed with the proposition that ‘a commitment on the part of all MS to the principles of Article 2 is necessary for the EU to effectively implement its policies’, and 40 (95 per cent) thought that ‘a commitment on the part of all MS to the principles of Article 2 is necessary for the democratic legitimacy of the EU’. Only two respondents (5 per cent) disagreed with these statements, and two (5 per cent) neither agreed nor disagreed with the first of the two statements. Our interviews on DI likewise indicate that concerns about democratic backsliding are widespread. Twenty-​ two interviewees spontaneously mentioned the existence of democratic backsliding at one point or another in our interviews. Considering that respondents were not asked direct questions on democratic backsliding, the number suggests that the issue preoccupied them considerably. As we had expected, concerns about democratic backsliding came up most frequently in interviews with centre (six), centre-​ left (seven), and far-​left (four) political parties, while only three out of the eight EPP-​affiliated respondents we interviewed spontaneously addressed democratic backsliding. Interestingly, while most centre-​left and centre respondents mentioned democratic backsliding and viewed it as a problematic issue, three far-​left respondents did not mention it at all, while one criticized heavily the EU’s attempts to intervene against democratic backsliding. However, this may be less surprising if we consider that some far-​left parties have a strong sovereigntist streak, which may lead them to oppose EU intervention in domestic matters. While we only interviewed three respondents from far-​r ight parties, it is worth noting that contrary to our expectations, two of them did raise concerns about democratic backsliding. Whereas our respondent from the AfD did not discuss it, both Jobbik respondents addressed the issue. This

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discrepancy is most likely explained by strategic factors. Jobbik is part of the opposition to Orbán, and is therefore negatively affected by democratic backsliding. Most recently, it has also deradicalized and softened its political message (Bíró-​Nagy and Boros, 2016). Respondents raising concerns about democratic backsliding noted first and foremost that some member states were violating the key fundamental principles enshrined in Article 2 TEU. While some respondents shied away from identifying culprits explicitly, those who did so brought up specifically Hungary and Poland. Several respondents worried that these member states were not respecting key civil and political rights, including human rights and media freedom. A far-​left respondent from Portugal and a centre-​left one from Austria, for example, depicted Hungary as a “dictatorship” (Respondent 29, BE) and “a kind of authoritarian regime” (Respondent 16, SPÖ). While most respondents referred to general violations of fundamental principles, a handful of respondents focused more specifically on issues with the Rule of Law. One centre-​r ight Danish respondent, for example, considered that some member states were trying to “bend it over the limit” (Respondent 7, K), while a centre-​r ight Greek respondent noted with dismay how the EU had failed to protect democracy and argued that one should cut funds “to countries that have been condemned by the European Court of Justice repeatedly about Rule of Law violations.” He continued that he was speaking “specifically about Hungary, but it’s not only Hungary … I mean, Hungary is not a democracy anymore, let’s be frank” (Respondent 23, ND). Some of our interviewees also discussed why they thought democratic backsliding is concerning for the EU, noting how it harmed its effectiveness and put its survival as a community of values at stake. As a centre-​left Hungarian respondent put it: ‘[I]‌f a Polish court cannot apply European law in one area, because it is not independent it means that the European

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law as such does not exist in Poland. … It’s really about the fundamental question of whether somebody who is a national of any member state … can you count on a Polish court to apply the same rules as you would be able to do at home? And if the answer is no, then we have a big problem.’ (Respondent 6, DK) These findings show that political party actors considered democratic backsliding to be a problematic issue. They echoed the concerns of scholars who highlight how democratic backsliding threatens the quality of democratic decision-​ making in the EU, as well as the EU’s legal functioning (Kelemen, 2019; Theuns, 2020, p 148). In line with our expectations, political parties of the centre and left tended to politicize democratic backsliding more significantly than others, although we found evidence of parties of the far-​and centre-​r ight raising concerns about it as well. Causes: does differentiated integration facilitate democratic backsliding?

The EU has not only come under attack because of its alleged role in being complicit with democratic backsliding. What is more, critics have focused on the role of DI in facilitating democratic backsliding, arguing that the EU’s increasing acceptance of flexibility provides backsliding member states with ammunition to justify their behaviour. Because our interviews focused on DI, we are uniquely well placed to see whether political party actors draw that link and, therefore, whether they perceive the EU as an enabler (however unwitting) of democratic backsliding. Our survey shows that some political party actors are concerned that DI could facilitate backsliding. When asked whether they thought that ‘flexible integration makes it easier for EU member states to ignore the Rule of Law and fundamental rights’, 21 respondents (50 per cent) agreed with

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the statement, with the remaining respondents evenly split between 11 who disagreed (25 per cent) and 10 who neither agreed nor disagreed (25 per cent). To prod further into the relationship between DI and democratic backsliding and explore the likelihood of opt-​ outs to Article 2 being acceptable, we also looked at whether party actors thought that DI should not apply in certain cases. Respondents in the survey were sceptical of the idea that democratic backsliding could be justified in terms of DI. Indeed, while three respondents (7 per cent) thought that DI should be permitted in all EU policy areas, and seven (17 per cent) that DI should not be allowed in any policy areas, 32 (76 per cent) considered that DI should not be permitted in certain EU policy areas, and 25 of those respondents (59 per cent) indicated the Rule of Law and Fundamental Rights as areas which should not be subject to DI. This means that 76 per cent of our survey respondents thought that DI should not be permitted in matters pertaining to Article 2. The interviews presented a somewhat different picture. In general, concerns about DI facilitating democratic backsliding were not particularly widespread in our interviews: only nine interviewees out of 35 considered that DI could facilitate it, and four of these respondents were from Hungary. Confirming our view that parties not belonging to the EPP were the most likely to draw a link between DI and democratic backsliding, centre-​left respondents were the most likely to do so, with four out of nine centre-​left respondents considering DI might facilitate democratic backsliding. Two out of six far-​left and two out of three far-​right actors also saw a link between the two, as did one respondent for the centre-​right. None of our seven centrist respondents linked DI and democratic backsliding, and one openly challenged the idea that DI could cause democratic backsliding. Out of the nine respondents who worried about DI facilitating backsliding, two were generally favourable to DI, while the remaining seven tended to oppose it. Considering that overall, 16 of our respondents opposed

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DI while 19 supported it (see Chapter 4), it does suggest that the connection between DI and democratic backsliding was made most frequently by those sceptical of DI. Those respondents who worried about DI leading to democratic backsliding thought that DI might be used to avoid following key rules, although they also acknowledged that this would depend on how it was designed. Thus, while a centre-​left Hungarian respondent claimed that DI would “support a government which does not really want to work in a democratic way” (Respondent 5, DK), and a social-​democratic German respondent noted that there was a risk that DI could be used to benefit from EU integration without subscribing to its fundamental values (Respondent 15, SPD), a far-​left Greek and a far-​left German respondent thought that its effects depended on its design. The former considered that DI would have negative implications if “opting out means what Orbán is doing” (Respondent 26, SYRIZA), while the latter suggested that flexibility touching upon fundamental principles would jeopardize the democratization of EU structures (Respondent 30, DIE LINKE). Among those most concerned about DI facilitating backsliding were Hungarian respondents, who had the very specific case of the EPPO in mind. The EPPO was introduced in 2017 as an enhanced cooperation of 22 member states. Among those not taking part is Hungary, and the actors we interviewed were highly critical of this choice. Coming from opposition parties across the political spectrum, they considered it unacceptable that Hungary was able to opt out of a policy that could have looked into Orbán’s misuse of EU funds. As one respondent explained: “We are an immensely corrupt state and clearly Viktor Orbán wants a prosecutor who is dependent on the government. And he doesn’t want anyone else to look into the finances of the government and how money is distributed in Hungary. And this is something that should not be allowed” (Respondent 8, Jobbik). Convinced that Orbán’s regime was propped up by the misuse of EU funds (see Theuns, 2020),

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and that his crony government would have trouble surviving without the EU’s money, these critics thought that the EPPO should have been a compulsory policy for all rather than a form of enhanced cooperation. Whereas interview respondents were less likely than survey respondents to think that DI facilitated democratic backsliding, they seemed to share similar views concerning whether opt-​ outs from Article 2 should be allowed. In line with the findings from our survey, most interviewees thought that DI should not be used in certain areas of policy, with 26 interviewees indicating specifically the areas pertaining to Article 2 as those which should be exempt from DI. Respondents identified fundamental rights and values, as well as the Rule of Law, as policy areas which should not be subject to DI. Positioning on DI did not seem to make a significant difference, as respondents holding this view were more or less evenly divided between opponents (11) and supporters (15). Interestingly, this view was widespread across party families. All far-​left actors mentioned these areas specifically, as did several centre-​left and centre respondents. All centre-​r ight actors also mentioned this point, suggesting that even EPP members, who did not spontaneously comment on the existence of democratic backsliding in the interviews, looked at DI in these areas with suspicion. As expected, none of our far-​r ight actors argued that DI should not be allowed in areas pertaining to Article 2. These findings indicate that although a backsliding member state may demand to be exempted from certain elements of Article 2, such arguments would be unlikely to pass muster among its peers. Both the interviews and the survey suggest that concerns about DI facilitating democratic backsliding are not exclusive to academic circles but worry political party actors as well, especially those who are generally against DI. Governments drawing on DI to justify backsliding would have problems selling their argument since most respondents, irrespective of their views on DI or of their political affiliation, seem to think these areas should not be subject to DI. Therefore, while it

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may be true that for some there is a perceived link between DI and democratic backsliding, this is not necessarily down to DI itself, but rather, to how it is being (mis)used (see Chapter 3). Remedies: how should democratic backsliding be addressed?

Our last question explores how democratic backsliding should be addressed. The existing literature has considered a variety of economic, political, and legal solutions, although scholars have disagreed over whether or not the EU should be the institution intervening against democratic backsliding (for contrasting views see Blauberger and Kelemen, 2017, on the one side, and Schlipphak and Treib, 2017, on the other). How do party actors answer this question? Most respondents in our survey seemed to think that the EU had the legitimacy to enforce the principles of Article 2. Indeed, when asked whether they agreed or disagreed that the EU should take measures against a state that did not uphold the Rule of Law and respect fundamental rights, 37 of our 42 respondents (90 per cent) agreed. Considering the type of measures they recommended, 26 (68 per cent) considered that the EU should resort to financial measures such as the suspension of EU funding and sanctions for non-​ compliant member states. One respondent insisted that these sanctions should only target the individuals responsible and considered that citizens, businesses, and NGOs engaged in fighting democratic backsliding at the national level should receive direct funding from the Commission. Nineteen (50 per cent) recommended legal and political solutions, including infringement procedures, Article 7, and the suspension of voting rights in the Council. Only four (10 per cent) opted for more soft-​touch options such as dialogue, political shaming, and encouraging democratic responses at the national level. Six respondents (16 per cent) considered that the expulsion of offending member states should be on the table. Only four

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(10 per cent) thought that the EU should not be policing these matters. These respondents considered that it should be down to the Council of Europe, national courts, and national electorates to respond to democratic backsliding. Our interviews brought up similar findings concerning the EU’s role in addressing democratic backsliding. Asked about how the EU should respond to member states who do not wish to join compulsory policies, 18 respondents discussed a variety of options. At the EU level, legal solutions appeared popular, with 11 respondents recommending infringement procedures against backsliding countries and measures such as the suspension of voting rights as per Article 7. A handful of respondents also thought that in more extreme cases, expulsion should be considered, while one respondent went so far as to suggest that a new EU without backsliding member states be founded. In line with our expectations, these respondents were almost exclusively from pro-​EU centre, centre-​left, and far-​left parties, while only one EPP member supported these measures. Unlike some academic accounts which suggest that there should be a new independent court or supervisory body charged of monitoring compliance with Article 2 (Müller, 2015; Schlipphak and Treib, 2017), these respondents looked to existing EU institutions as best placed to make these judgements. Only one centre-​left respondent from Hungary thought that DI might help address democratic backsliding. Echoing our idea of ‘value DI’, the respondent thought that DI could help ‘insulate’ the EU from the influence of backsliding member states and enable it to “defend itself from these fragmentation forces. If you cannot convince these countries, then you have to put them in a pocket where they cannot infect the rest or where they don’t destroy things that … are absolutely important for the other counties” (Respondent 6, DK). Eight respondents considered that economic sanctions would be appropriate and recommended cutting funds for member

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states that failed to uphold the rules. A Danish conservative respondent suggested that “you must use the money as a way to discipline a state who deviates on the Rule of Law” (Respondent 7, K). These respondents worried that EU funding enabled the political survival of backsliding governments. For example, one Hungarian centre-​left respondent noted that his country experienced “a huge amount of corruption” at the hands of the government of Viktor Orbán and stressed how “one of the backbones of this corruption is that he can maintain and finance his own companions through EU funds” (Respondent 4, MSZP). As before, it was mostly actors from the centre, centre-​left, and far-​left raising these points. However, two of our EPP respondents also thought that economic sanctions could be introduced to respond to demands for flexibility in core EU policies. While the solutions discussed earlier are more institutional and EU-​driven, five respondents mentioned political and national solutions. These included encouraging dialogue with backsliding member states, the expulsion of backsliding governments from EP party groups, or simply waiting for regular democratic processes to yield new (non-​backsliding) majorities. No discernible trend was observable here, as the five respondents came from across the political spectrum. Similar solutions have been mentioned in the literature as well (Schlipphak and Treib, 2017). Summing up, our analysis suggests that the EU is by and large perceived as well-​placed to respond to democratic backsliding, although, as we had expected, much of this support came from the centre, centre-​left, and far-​left. The solutions proposed were in line with EU competences, and supported (stronger) legal and financial sanctions. Conclusion Theis chapter has shown how democratic backsliding was perceived as problematic, with political party actors sharing

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many of the concerns raised in the existing literature on DI. Like many scholars (for example, Kelemen, 2017; Theuns, 2020; Bellamy and Kröger, 2021a), the party actors we spoke to worried about democratic backsliding and its potential implications for the effectiveness and democratic legitimacy of the EU. Political party actors from the centre, centre-​left, and far-​left were most perturbed by democratic backsliding, although we found it also troubled the Hungarian far-​right party Jobbik as well as some centre-​r ight actors. The views of party actors also differed regarding the connection between DI and democratic backsliding. While for some, the EU had only a limited role in facilitating democratic backsliding, the survey in particular suggested that many political actors considered that DI could enable it. However, all regarded DI as unacceptable in areas pertaining to Article 2, suggesting that the problem was less with DI itself than with how it was being used to justify dubious practices. Whereas centre-​left respondents sceptical of DI in general were most likely to link DI and democratic backsliding, opposition to using Article 2 to justify democratic backsliding came from supporters and opponents of DI from across the political spectrum. Finally, aligning with those who have argued in favour of further EU intervention in matters of democratic backsliding, our interviews and survey indicated that the EU was perceived as well placed to tackle to backsliding. Respondents in our survey mostly thought that the EU had the right to take measures against member states that did not uphold the Rule of Law and respect fundamental rights. Interviewees presented a variety of EU level institutional responses to democratic backsliding and revealed a certain sensitivity to national sovereignty and the need not to punish opposition groups when penalizing backsliding governments.

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We have argued that differentiated integration provides a mechanism for combining the demands for European integration with the recognition of national diversity. However, to do so we contend that DI must be understood not simply as strategically beneficial or expedient but also as ethically desirable and constrained. DI would prove objectionable and divisive, liable to undermine rather than to facilitate European integration, if it served simply to allow states to cherry-​pick those policies they considered to be in their national interest narrowly conceived. As a result, we have sought to identify the conditions under which DI is necessary for and supports a just and democratically legitimate scheme of cooperation, and is recognized as such by political party actors. To support a fair scheme of cooperation between EU member states, we have argued that DI must fulfil certain normative criteria. Procedurally, it should ensure that all member states and their peoples remain equal and have access to similar basic liberties. Both exclusions and exemptions should be agreed either unanimously by representatives of all member states when negotiating the accession of new members or amending the Treaties, or result from a member state choosing not to participate in an enhanced cooperation supported by at least nine member states. Moreover, participants must consult non-​participants on the conduct of the policy area, which should remain subject to common Treaty provisions, and provide those excluded or exempted with the prospect of joining in the future. Substantively, DI must reflect norms

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of impartiality and reciprocity. On the one hand, it must take into account the different capacities member states may have for producing a given collective good, and the different stakes and interests they may have in it. On the other hand, no member state should be excluded from a policy if they would become worse off than they currently are as a result, nor should a state be allowed to opt out of a policy or be exempted from meeting certain standards if that would render the participating or complying states worse off than they are. Moreover, the conditions governing both exclusions and opt-​ outs/​exemptions should ensure public goods, such as a clean environment, and common resource pools, such as fish stocks, are not eroded as a result. Furthermore, we have shown that DI can enhance democracy at the European level by helping address the issues of proportionality and partiality arising from the EU’s growing heterogeneity, so as to produce fair outcomes that acknowledge their differences. Finally, we have argued that neither DI nor constitutional pluralism facilitate or justify democratic backsliding. Instead, both are premised on the values enshrined in Article 2, and may not be used to backtrack on those commitments. We have also suggested that DI can in fact help counter democratic backsliding by providing the EU with legitimate tools to restrict backsliding member states from participating in EU policies and to reduce their funding. If DI that meets these standards is to be recognized as fair and legitimate, these criteria must also resonate with political party actors. We found their views on DI proved less optimistic than our own assessment. While some viewed it as a pragmatic way forward for the EU, and as potentially respecting the principles of substantive and procedural fairness, others worried about its negative implications for equality and solidarity. As we showed in Chapter 5, while many thought that DI could ensure an equitable distribution of the costs and benefits of European integration, they also worried that it could result in free riding and certain states paying less than their fair share. Similarly, Chapter 6 showed that whereas a small majority of

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interviewees considered that DI would not create domination, a sizeable minority considered that it might do precisely that. To avoid this eventuality, they adopted procedural criteria of fairness similar to those we have advocated. For example, they contended differentiated policies must remain open for all to join provided they met certain clear and consensually agreed criteria. They also thought that all member states should have a say on the policy in the Council, though only participating states should be entitled to vote. However, they considered that all MEPs should be able to vote on differentiated policies within the EP. Finally, Chapter 7 showed that political party actors shared concerns expressed in the literature that DI might facilitate democratic backsliding. Consequently, they believed DI to be unacceptable in areas pertaining to Article 2. They also felt the EU was entitled and able to counter such backsliding. Bringing together theoretical and practitioners’ perspectives In the remainder of this conclusion, we shall bring together the normative and empirical parts of this book and reflect on why political actors’ views on the usefulness and acceptability of DI sometimes diverged from ours, and how the normative criteria we have advocated might be supplemented to accommodate this divergence. First, while political actors certainly agreed fairness matters, they drew attention to the possibility that procedural fairness and substantive fairness might come apart. On the one hand, DI might be justifiable on democratic grounds and be introduced in a procedurally fair way, yet end up having unfair substantive effects for those who either are excluded/​ exempted or continue to participate in the policy area or join in an enhanced cooperation. On the other hand, DI might be substantively fair, promoting more efficient and equitable cooperation among participating member states, yet risk eroding the procedural fairness of EU decision-​making. DI

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may render the institutional architecture of the EU more complicated and increase legal fragmentation, leading to it being more difficult to run the EU as well as to explain it to its citizens. These potential trade-​offs between the procedural and substantive fairness of DI move questions of institutional design centre stage. To meet the first concern, institutional design should motivate a compulsory pre-​introduction analysis of the potential substantive effects of a differentiated policy on both those who participate and those who do not. To meet the second concern, the governance implications of DI need also to be addressed. As we argued in Chapter 2, ideally DI should make EU decision-​making easier, by legitimating majority rule among participants within a policy. If its knock-​ on effects are to increase the use of consensus decision-​making in order to overcome the risk of domination then DI is probably inadvisable or the design needs rethinking. Given not all consequences of any policy can ever be fully anticipated, it might be worth considering whether there should be a compulsory review of certain DIs after a specified period so as to assess the procedural and substantive effects of having differentiated a policy. Second, unsurprisingly the literature on DI has been hitherto quite state-​centric, given it is states that either opt out of or are excluded/​exempted from policies. As a result, there now is a fair amount of research available on what drives governments to request exemptions or seek exclusions from specific policies. We know considerably less about other actors, particularly citizens, to whose preferences regarding different types of DI party actors and other decision-​makers often respond. Further research on both party actors and citizens seems warranted, therefore, not least on which variables drive their assessment of DI, and how they resolve some of the potential trade-​offs listed. Third, the EU is not only exceptional among regional organizations in the extent of its competences and the resulting authority of its supranational institutions. It is also unusual in

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insisting on both its own democratic credentials and those of its member states. Indeed, as we saw in Chapter 3, these two features are related. As a result, democratic backsliding by certain member states strikes at both the legitimacy and the efficacy of the EU. Nevertheless, it might be regarded as problematic for the EU to define how democratic values should be understood within its member states given even fundamental rights can be the object of reasonable disagreement as to their basis and scope both within and between different democratic societies (Bertolini and Dawson, 2021). True, it is inconsistent and unreasonable for such disagreements to extend to the denial of the pluralism and the legitimacy of disagreement itself. Democratic backsliding can be condemned for entailing precisely such a denial. Yet, a difficulty potentially remains as to how far the European Commission and CJEU, which themselves might be regarded as lacking democratic legitimacy, can act against these regimes in ways that are themselves consistent with the constitutional and democratic pluralism of the EU. Political actors agreed overwhelming that democratic backsliding posed a serious threat to the integrity of the EU. Moreover, they were less hesitant than we had supposed they might be in insisting that the EU could and should take immediate and decisive action against such regimes. In accommodating their views within our demoicratic and constitutional pluralist framework, lessons might be drawn from the Council of Europe and the jurisprudence of the European Court of Human Rights (ECtHR). Like the ECtHR, it seems warranted from our perspective for the EU to apply a ‘margin of appreciation’ as to how the fundamental rights of Article 2 are interpreted. However, while this doctrine allows for some differentiation in the ways certain rights are applied within different national jurisdictions, it excludes such a margin with regard to absolute rights –​such as the right not to be tortured –​ and requires a minimum standard of compliance for qualified rights, such as freedom of speech. Codifying such a doctrine in

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the future might offer a way of deepening integration on the protection of rights and empowering the CJEU in this area in ways that allow for their differentiated application within the member states yet exclude, as political actors rightly demand, the possibility of their being denied or abrogated. Finally, with the departure of the United Kingdom from the EU, it might be conjectured that the demand for DI will lessen. After all, the United Kingdom was one of the main proponents of DI. Yet, it has been by no means the only one. For example, Denmark’s opt-​outs are all still in place and are unlikely to disappear any time soon. Similarly, the EU enlargement process, while currently at a standstill, has not been abandoned and it is likely that as the EU welcomes the countries of the Western Balkans, accommodations similar to those offered in previous enlargement rounds will need to be made. Neither political and cultural nor socio-​economic heterogeneity are likely to diminish as features of the EU any time soon. Nor should we necessarily wish them to. Diversity can in many respects be a sign of vitality and a spur to openness and innovation. As a result, flexibility and DI are likely to remain important qualities of the EU, that are central to its ability to unite its diverse parts democratically and fairly. This book has sought to show why and how that might be best achieved.

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Appendix A List of Respondents 1. Advisor, National Liberal Party (PNL), Romania, June 2020 2. Co-​chair, Politics Can Be Different (LMP), Hungary, March 2020 3. Elected official, Movement for a Better Hungary (Jobbik), Hungary, March 2020 4. International Secretary, Hungarian Socialist Party (MSZP), Hungary, March 2020 5. Elected official, Democratic Coalition (DK), Hungary, March 2020 6. Advisor, Democratic Coalition (DK), Hungary, March 2020 7. Elected Official, Conservative People’s Party (K), Denmark, March 2020 8. Elected Official, Movement for a Better Hungary (Jobbik), Hungary, March 2020 9. Elected Official, Social Democratic Party of Germany (SPD), Germany, March 2020 10. Advisor, The Left (DIE LINKE), Germany, March 2020 11. Elected Official, Social Democratic Party of Germany (SPD), Germany, March 2020 12. Advisor, Red-​Green Alliance (EL), Denmark, March 2020 13. Elected Official, Left, Denmark’s Liberal Party (V), Denmark, March 2020 14. Advisor, Socialist People’s Party (SF), Denmark, March 2020 15. Advisor, Social Democratic Party of Germany (SPD), Germany, April 2020 16. Elected Official, Social Democratic Party of Austria (SPÖ), Austria, April 2020

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17. Elected Official, Austrian People’s Party (ÖVP), Austria, April 2020 18. Elected Official, Democratic Alliance of Hungarians in Romania (UDMR), Romania, April 2020 19. Elected Official, Social Democrats (SD), Denmark, April 2020 20. Advisor, Left Bloc (BE), Portugal, April 2020 21. Elected Official, Save Romania Union (USR), Romania, April 2020 22. Elected Official, Coalition of the Radical Left (SYRIZA), Greece, April 2020 23. Elected Official, New Democracy (ND), Greece, April 2020 24. Elected Official, Danish Social Liberal Party (RV), Denmark, April 2020 25. Elected Official, Freedom, Unity and Solidarity Party (PLUS), Romania, April 2020 26. Elected Official, Coalition of the Radical Left (SYRIZA), Greece, May 2020 27. Elected Official, Alternative for Germany (AfD), Germany, May 2020 28. Elected Official, Socialist Party (PS), Portugal, May 2020 29. Elected Official, Left Bloc (BE), Portugal, May 2020 30. Elected Official, The Left (DIE LINKE), Germany, May 2020 31. Advisor, National Liberal Party (PNL), Romania, June 2020 32. Advisor, Danish Social Liberal Party (RV), Denmark, June 2020 33. Advisor, Austrian People’s Party (ÖVP), Austria, June 2020 34. Advisor, Left, Denmark’s Liberal Party (V), Denmark, June 2020 35. Elected Official, Social Democratic Party (PSD), Portugal, June 2020

161

Appendix B Interview Questions 1. There is currently a debate on the future institutional shape of the European Union. In your view, what institutional reforms, if any, are required? 2. In recent years, EU integration has become more and more flexible. Some countries have negotiated permanent opt-​ outs (for example Denmark). Others have been temporarily excluded from certain policies (for example the euro, Schengen). What are your views on this growing flexibility? 3. Do you think there are cases where flexibility is unacceptable? For example, do you think flexibility is more acceptable depending on whether it is temporary or permanent, or in certain policy areas? 4. What should happen with member states who do not wish to join compulsory policies? 5. Enhanced cooperation is a procedure where a minimum of nine EU countries are allowed to establish advanced integration or cooperation in an area within EU structures but without the other EU countries being involved. Do you think it is acceptable that some member states engage in enhanced cooperation when other member states prefer there to be no integration in that specific area? 6. How do you think your country would benefit from opting out of certain areas? How do you think it would benefit from being part of enhanced cooperation? 7. Some commentators have argued that flexible integration can be unfair. For example, some countries and citizens are accused of benefitting from EU projects without participating in them, while some countries and citizens cannot fully benefit from their EU membership because

162

Appendix B

they are excluded from certain policies (for example Schengen, the euro). Does this criticism ring true to you? Why/​why not? 8. Do you think a more flexible EU would be a good or a bad thing for democracy? 9. In a flexible Europe, do you think all member states in the Council should have a vote in decisions, or should only those states participating in a given policy area have a vote? • What if a state is affected by a policy even if it does not participate in it? For example the euro? Is there a difference between Denmark, that has opted out of the euro, and Croatia, that has simply yet to qualify to join, but will do in the future? • In a flexible Europe, do you think all MEPs should have a vote, or only the ones from countries taking part in a scheme? • Some commentators have suggested that there should be a Euro-​Parliament. What are your thoughts on this? 10. Do you consider the current threshold of nine participating member states to start an enhanced cooperation to be sufficiently high? 11. Do you think it should be possible for some member states to be able to exclude others from participating in certain policies? For example, by introducing restrictions or stiff criteria for entry. 12. Some EU countries are accused of ‘free riding’, that is, benefiting from the EU without committing fully to the ideas of European integration and solidarity or benefiting from the EU without paying their fair share. Can you tell me if this is the case, and why you consider that it is (or is not) a problem? 13. Do you think enhanced cooperation should be allowed: • If it makes both participating and non-​participating states better off?

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• If it makes the participating states better off but the non-​participating states worse off? • If it makes the participating states better off and does not make the non-​participating states worse off? 14. Would it be acceptable for a state to opt-​out from an EU policy if it makes the policy costlier for those participating in it? 15. Flexibility of the kind here discussed in this research means that some European citizens have more rights than others. Do you think this is legitimate? 16. Do you think all EU citizens should be guaranteed the same fundamental rights? What rights should all EU citizens have? 17. Do you think a more flexible Europe would benefit all EU citizens and members states equally?

164

Appendix C Survey Questions 1. In your view, are some EU governments failing to uphold fully the Rule of Law and democratic principles such as free and fair elections, basic civic and political rights and judicial independence? Yes/​No 2. Article 2 of the Treaty on European Union states that ‘the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-​discrimination, tolerance, justice, solidarity and equality between women and men prevail’. 2a. To what extent do you agree or disagree that a commitment on the part of all member states to the principles of Article 2 is necessary for the EU to effectively implement its policies? Strongly disagree/​disagree/​neither agree nor disagree/​agree/​ strongly agree 2b. To what extent do you agree or disagree that a commitment on the part of all member states to the principles of Article 2 is necessary for the democratic legitimacy of the EU? Strongly disagree/​disagree/​neither agree nor disagree/​agree/​ strongly agree 3. To what extent do you agree or disagree that it is the role of the EU (through the Council, Commission, and Court of Justice) to take measures against member states that do not uphold the Rule of Law and respect fundamental rights?

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Strongly disagree/​disagree/​neither agree nor disagree/​agree/​ strongly agree 3a. (If agree/​strongly agree) Please use this space to state what measures you believe the EU should take to enforce compliance. 3b. (If disagree/​strongly disagree) If not the EU, then please use this space to state which institutions and bodies you believe should be responsible for ensuring member states uphold the Rule of Law and respect fundamental rights. 4. Flexible integration allows some member states to opt out or get exemptions from agreed policies. Please select which of the following statements about flexible integration in the EU you agree with. a) Flexible integration should be permitted in all EU policy areas. b) Flexible integration should not be permitted in certain EU policy areas. c) Flexible integration should not be permitted in any EU policy area. 4a. (If 4a is selected) Please select the specific EU policy areas where you believe flexible integration should not be permitted. o Rule of Law o Fundamental rights o Single market and four freedoms o Schengen Area o Economic and Monetary Union o Other (please state) 5. To what extent do you agree or disagree that flexible integration makes it easier for EU member states to ignore the Rule of Law and fundamental rights? Strongly disagree/​disagree/​neither agree nor disagree/​agree/​ strongly agree

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Notes Introduction 1

2

Part I of the book draws on research developed by Richard Bellamy and Sandra Kröger. Part II was developed by Richard Bellamy, Sandra Kröger, and Marta Lorimer. Interviews were planned to be in-​person, however, the COVID-​19 outbreak in March 2020 prompted a shift to online and phone interviews.

three Democratic Backsliding and the Limits to Differentiated Integration  1

For example, BVerfGE 37, 271 [1974] CMLR 540 (Solange I); Brunner v The European Treaty [1994] CMLR 57 (Maastricht Judgment); 2 BvR 2/​ 08, 30 June 2009 (Lisbon Judgment); and 2 BvR 1390/​12, 12 September 2012 (European Stability Mechanism Treaty).

four Party Views on Differentiated Integration  1 2

Parties were classified as pro-​EU or anti-​EU based on the 2020 Chapel Hill expert survey (Bakker et al, 2020). This view is corroborated by the fact that when we asked respondents what reforms they foresaw for the EU, none of them spontaneously indicated DI as a preferred outcome.

five Party Views on the Substantive Fairness of Differentiated Integration  1

While we asked these questions to all of our respondents, some declined to answer some or all of them or provided answers that were not specific to DI. Those responses were removed from the sample.

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181

Index Page numbers in bold refer to tables. and domination  123–​5 political parties’ views on  128, 129–​30, 136 exemptions and exclusions  81 and heterogeneity  67 political parties’ views on  21, 90, 96–​8, 99, 100, 101 and procedural fairness  39, 46, 48 and substantive fairness  40, 46, 48 political parties’ views on  109, 112–​13, 117 Castiglione, D.  2 Cheneval, F.  4, 13, 29, 43, 44, 45 Chopin, T.  90, 92, 125 Christensen, J.  3, 110 Christiano, T.  democratic backsliding  72 democratic process  52 democratic systems  50, 51 equality argument  53 exclusive clubs  62 impartiality argument  54, 55 public and common-​pool goods  7, 33, 37, 64 tyranny of the majority  17 club goods  5–​6, 7, 36–​7, 60–​1 collective action  60 collective goods  60–​1 Common Agricultural Policy  61 common-​pool goods  5, 6–​7, 37 Community Method  58 competence-​competence  78, 80 concentric circles  9, 10 consistent minorities  55 consociational democratic systems  57–​8

A Adler-​Nissen, R.  19, 90, 92, 107, 125

B Baranski, M.  74 Barber, N.W.  69, 77, 78 Barry, B.  37 Bellamy, R.  capacity DI  5 constitutional pluralism (CP)  75 demoicracy  11, 13, 43 difference problem  57 differentiated integration (DI)  2, 3, 4, 107 domination  124 European Union (EU)  34, 58 free movement  45 non-​domination  123 Bertolini, E.  158 Bevir, M.  19 Bíró-​Nagy, A.  145 Blake, M.  31 Blauberger, M.  70, 79, 80, 85 Bobić, A.  76, 78 Boros, T.  145 Brighouse, H.  53 Buchanan, A.  37 Bulgaria  61, 62

C Canada-​EU Trade Agreement (CETA)  63 Caney, S.  6, 37, 64 capacity DI  5–​7, 8, 9, 111 and democratic differentiation  61–​2 and devolution  59

182

Index

constitutional pluralism (CP) 69–​70, 71 and legitimate limits of differentiated integration  73–​9 and value DI  79–​84 cooperation  49 differentiated integration (DI) as a fair scheme of  27–​8, 108, 154–​5 and demoicracy  45–​7, 48 and statist intergovernmentalism  34–​7 and supranational cosmopolitanism  39–​41 reduced  8, 83 see also enhanced cooperation Coppel, J.  65 cosmopolitan perspective  see supranational cosmopolitan perspective Costa, O.  58 Council of Europe  81, 151, 158 Council of Ministers  58 counter-​punctual system  75 Court of Justice of the European Union (CJEU)  capacity DI  40 constitutional pluralism (CP)  69, 70, 76 democratic backsliding  77, 78–​9, 80, 81, 83, 158, 159 jurisdiction  65 sovereignty DI  66 Weiss judgement  74, 75 Croatia  62 Crotty, M.  19 Curtin, D.  10, 46, 83, 126, 141

De Witte, B.  65 deepening integration  109, 111, 114–​20 Dehousse, R.  10 democracy  12, 16–​17, 56, 67, 76 democratic argument for differentiated integration  51–​60 equality argument  53–​4 fairness argument  56–​60 impartiality argument  54–​6 democratic backsliding  17, 22, 68, 70–​3, 139–​43, 155, 158 constitutional pluralism (CP) and legitimate limits of differentiated integration  73–​9 constitutional pluralism (CP) and value DI  79–​84 political parties’ views on  138, 143–​53 causes  146–​50 remedies  150–​2 and sovereignty DI  66 democratic differentiation  60–​6 democratic systems  50, 53–​4, 54, 55, 57–​8 demoicracy  41–​7, 48 European Union (EU) as  11–​14, 29, 51, 69, 74–​5, 84, 85 devolution  14, 54, 56, 58, 59, 63 difference problem  57 differentiated group rights  55–​6 differentiated integration (DI)  1–​4 categories of  4–​9 democratic argument for  51–​60 equality argument  53–​4 fairness argument  56–​60 impartiality argument  54–​6 and democratic backsliding  146–​50 political parties’ views on  151, 153 democratic differentiation  60–​6 and domination  123–​7 political parties’ views on  127–​37

D Dahl, R.A.  50, 51 Danish Protocol  65 Dawson, M.  76, 78, 158 de Blok, L.  89, 91, 105 de Búrca, G.  10, 73 de Vries, C.E:  18, 89, 91, 105

183

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as a fair scheme of cooperation  27–​8, 108, 154–​5 demoicracy  45–​7, 48 statist intergovernmentalism  34–​7 supranational cosmopolitanism  39–​41 and flexible Europe  9–​14 legitimate limits of  73–​9 normative justification of  14–​17, 98–​9 normative opposition to  101–​3 political parties’ views on  17–​23, 90–​106, 155–​9 and democratic backsliding  151, 153 domination  127–​37 opponents  100–​4 substantive fairness  109–​21 supporters  96–​100 substantive fairness of  107, 108–​9 political parties’ views on  109–​21 see also capacity DI; sovereignty DI; value DI domination  10, 15, 16, 49–​50, 101, 102–​3, 123–​7 mitigation  132–​6, 136–​7 perception  127–​32 Duttle, T.  109 duty of assistance  32–​3, 36, 42 Dworkin, R.  77, 124

equality argument  53–​4 Eriksen, E.O.  10, 41 EU enlargement  109 EU funds  73, 82, 85, 150, 151–​2 EU law  69, 76, 77, 78, 79, 141 Europe à la carte  9 European Anti-​Fraud Office  73 European Central Bank (ECB)  74, 76 European Commission  Community Method  58 democratic backsliding  66, 72, 79, 138 federal approach  70 Rule of Law review cycle  80–​1 and sovereignty DI  40 Weiss judgement  74 European Conservatives and Reformists (ECR)  138, 140, 142 European Council  democratic backsliding  158 enhanced cooperation  35 EU governance  69–​70 European integration  11 procedural fairness  46 voting rights  22, 82–​3, 126, 133–​4, 136–​7, 150, 156 European Court of Human Rights (ECtHR)  158 European identity  1, 103 European integration  89–​90, 91, 93, 103 deepening integration  109, 111, 114–​19, 119–​20 widening integration  109, 112–​13, 119 see also differentiated integration (DI) European Monetary Fund (EMF)  76 European Parliament (EP)  Community Method  58 cosmopolitan perspective  44 democratic backsliding  66, 138 enhanced cooperation  35 EU funds  82

E economic sanction  151–​2 see also EU funds enhanced cooperation  8, 21, 35, 36, 40–​1, 61–​2, 111 and domination  123–​4, 125–​6 political parties’ views on  128, 130–​1, 132, 136 political parties’ views on  90, 96, 97–​8, 99, 102, 116–​17, 121 environmental policies  64 equality  48, 60, 91, 101–​3, 135

184

Index

EU governance  70 procedural fairness  46 regulation  81 sovereignty DI  40 voting rights  22, 42, 83, 126, 133, 134–​5, 136–​7, 156 European People’s Party (EPP)  138, 139–​40, 142, 144, 147, 149, 152 European Public Prosecutor’s Office (EPPO)  148–​9 European Union (EU)  decision-​making  58–​9 and democratic backsliding 139–​43, 151 as demoicracy  11–​14, 29, 44–​5, 51, 69, 74–​5, 84, 85 domination  10, 50, 123–​7 federal approach  70, 78 federal arrangement  13, 33 governance  69–​70 institutional structure  122, 123–​5, 157 and domination  127–​37 intergovernmental versus supranational accounts  28–​9, 33, 38–​9 legitimacy  70, 72 procedural fairness  41–​2 substantive fairness  42 see also flexible Europe Eurozone  36, 46, 61, 62, 65, 113, 133 Eurozone crisis  2, 7

fairness argument  56–​60 Fasone, C.  46, 83, 126 Fleming, S.  74 Fleurbaey, M.  53 flexible Europe  2, 9–​11 and demoicracy  11–​14 Fossum, J.E.  15, 18, 125 France  61 free movement  3, 38, 44, 45, 47, 62, 65 Freeden, M.  91 freedom of expression  66 Friedrich, D.  28 fundamental rights  75, 146–​7, 149, 150, 153, 158

G GDP (gross domestic product) 61 Genschel, P.  10 German Federal Constitutional Court (FCC)  66, 69, 75–​6 Germany  61 Ginsburg, T.  71 globalization  12, 38, 49 Gómez Díaz, J.  91 Goodin, R.E.  18 governance  125–​6, 133, 157 green-​alternative-​libertarian (GAL) parties  140, 141, 142 Grimm, D.  75, 78

H Haas, E.B.  1, 28 Heermann, M.  46, 122, 126 Herman, L.E.  71, 139, 140 Hobolt, S.B.  18 Hoerner, J.  140 Holzinger, K.  18 Hooghe, L.  7, 90, 91 Hopkins, V.  72 Hungary  17, 66, 72–​3, 74, 138, 139, 145, 148 Huq, A.Z.  71

F fairness  22–​3 among individuals  37–​9 among states  31–​3 as argument against differentiated integration  101 demoicratic perspective  43–​5 exemptions and exclusions  3–​4 see also differentiated integration (DI): as a fair scheme of cooperation; procedural fairness; substantive fairness

I impartiality  108, 109–​10, 111, 114, 117, 118, 120, 155

185

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impartiality argument  54–​6 institutional design  122, 123–​5, 157 and domination  127–​37 integration  see differentiated integration (DI) intergovernmental perspective  see statist intergovernmental perspective international cooperation  27, 28, 49 international fairness  32 interview questions  162–​4 interviews  see semi-​ structured interviews Irish Protocol  65

European Union (EU)  70, 72, 144 exemptions and exclusions  3–​4 Leo Tindemans Report  61–​2 Lequesne, C.  90, 92, 125 Leruth, B.  20, 91, 105, 125 Leuffen, D.  46, 89, 91, 92, 105–​6, 122, 126 Lijphart, A.  58 Lisbon Judgement 2009  66 Lord, C.  collective action  60 integration  9 multi-​speed approach  10 public and common-​pool goods  6, 37, 47, 63 sovereignty and capacity DI  48 Lovett, F.  123, 127 Luxembourg  61

J Jachtenfuchs, M.  10 Jobbik  144–​5, 153

M

K

MacCormick, N.  69 Maduro, M.  74, 75, 77 Magnette, P.  58 Majone, G.  60 Malang, T.  18 Marks, G.  7, 90, 91 meaning-​making  19 Meijers, M.J.  89, 138, 139 Members of European Parliament (MEPs)  20 democratic backsliding  140 voting rights  83, 126, 133, 134–​5, 156 Michailidou, A.  15, 107, 125 migrant workers  102 migration crisis  2, 7 Miller, D.  16, 52, 55 moral equality  37–​8 Moravcsik, A.  1, 28 Mudde, C.  141 Müller, J.W.  70, 72, 151 Multiannual Financial Framework (MFF)  82, 83, 85 multi-​speed Europe  9 Mutually Assured Destruction (MAD)  77, 78

Kelemen, R.D.  democratic backsliding  72, 73, 74, 79, 139, 140 Poland and Hungary  66, 68 political parties’ views on  138 European Parliament (EP)  70 Kelly, S.E.  19 Kölliker, A.  5, 10, 37, 47, 60, 91 Kröger, S.  capacity DI  5 differentiated integration (DI)  3, 4, 107 political parties’ views on  90, 91, 92 domination  124 European Union (EU)  28, 58 subjective approach  19 Kymlicka, W.  3, 14, 17, 39, 55, 124

L Lacey, J.  140 legitimacy  democratic processes  16–​17, 52 differentiated integration (DI)  18

186

Index

pluralism  17 Pogge, T.W.  37, 66 Poland  17, 74, 111, 138, 140, 141, 145 political justice 32, 37  see also procedural fairness political parties (party actors)  democratic backsliding  138, 139–​43, 143–​53 causes  146–​50 remedies  150–​2 views on differentiated integration (DI)  17–​23, 90–​106, 155–​9 domination  127–​37 opponents  100–​4 substantive fairness  109–​21 supporters  96–​100 views on European integration  89–​90, 91 politico-​cultural heterogeneity  50, 57, 58, 67 polluter pays principle  6 poly-​ethnic rights  55, 56 procedural fairness  15–​16, 27, 28, 48 demoicracy  41–​2, 43–​4, 46 political parties’ views on  156–​7 statist intergovernmental perspective  34–​5 supranational cosmopolitan perspective  38, 39–​40 proportionality problem  16–​17, 50, 53, 57, 58, 59, 60–​4 Prosser, C.  90, 91 public goods  5, 6–​7, 37, 60, 63–​4, 155

N Nagel, T.  31 nation states  37 cooperation  27, 28 fairness among  31–​3 demoicratic perspective  43–​5 functional and moral challenges  11–​13 national cooperation  27, 28 national parliaments  58 Next Generation EU fund  82, 85 Nicolaïdis, K.  4, 11, 13, 51, 57, 69, 74 Nozick, R.  64

O OLAF (Office de Lutte Anti-​Fraude)  73 O’Neill, A.  65 opt-​outs  Denmark  65, 103, 159 from enhanced cooperation  111 European Council  126 fairness and legitimacy of  3–​4 political parties’ views on  117–​18 public goods  155 Single European Act  63 Sweden  7 treaty negotiations  35 Victor Orbán  148 Orbán, V.  148–​9, 152

P Papadopoulos, Y.  58 Pareto improvement  16, 36, 44, 48, 116–​17 partiality problem  16–​17, 50, 55–​6, 57, 58, 59, 64 party actors  see political parties (party actors) party families  21, 93, 97, 98, 102, 105 Pech, L.  138 perception  136 Pettit, P.  12, 50, 56, 123 Piris, J.-​C.  61, 63

R Rawls, J.  democratic backsliding  71 democratic systems  50, 76 exemptions and exclusions  4 fairness  29–​30, 31–​3, 108 procedural  39 impartiality and reciprocity  27–​8 political obligations  44, 64

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reciprocity  108, 110, 121, 155 political parties’ views on  113, 114, 116, 118 statist intergovernmental perspective  35–​6 reduced cooperation  8, 83 research respondents  160–​1 Rhodes, R.A.W.  19 Richmond, C.  77 Romania  62 Romanian migrant workers 102 Rothenstein, B.  72 Rule of Law  145, 146, 147, 149, 152 rule of law conditionality  82 Rule of Law review cycle  80–​1 Russia  72

interview questions  162–​4 respondents  160–​1 Single European Act  63 social justice  32, 37 see also substantive fairness socio-​economic heterogeneity  50, 52, 57, 58, 60, 67 solidarity  42, 115–​16 sovereignty  140 sovereignty DI  7–​9, 10–​11 and deepening integration 111 and devolution  59 and domination  123–​4 political parties’ views on 128–​9, 136 and partiality problem  64–​6 political parties’ views on  21–​2, 90, 96, 97–​9, 101, 114, 115, 117 and procedural fairness  34–​5, 39–​40, 46, 48 Treaty on European Union (TEU)  74 special representation  55, 56 Spieker, L.D.  70, 79, 83 states  see nation states statist intergovernmental perspective  28–​9, 31–​3, 33, 41, 44, 47 and differentiated integration (DI)  34–​7 Steenbergen, M.R.  18 Streek, W.  1 Stubb, A.C.-​G.  10 subsidiarity  63 substantive fairness  21, 27, 28–​9, 33, 48, 156–​7 demoicracy  42, 43–​4, 46–​7 political parties’ views on 107–​21 deepening integration  114–​19 widening integration  112–​13 statist intergovernmental perspective  35–​6 supranational cosmopolitan perspective  39, 40

S Sadurski, W.  71 Sangiovanni, A.  27, 31, 47 Schäfer, C.  90, 91 Scharpf, F.W.  58 Schengen Area  61, 62, 100, 103, 132–​3 Scheppele, K.L.  71 Schimmelpfennig, F.  bargaining  108 capacity DI  5 demoicracy  4, 29, 44 differentiated integration (DI)  1, 2, 10 opposition to  92 substantive fairness  109 exemptive differentiation  113, 125 sovereignty DI  7 Schlipphak, B.  70, 79, 80, 140, 151, 152 Schuessler, J.  91 Schwartz-​Shea, P.  19 Scott, J.  10, 73 Sedelmeier, U.  129, 138, 141 self-​government rights  55, 56 semi-​structured interviews 19–​20, 92–​3

188

Index

Sunstein, C.R.  77 supranational cosmopolitan perspective  28–​9, 37–​9, 44, 47 and differentiated integration (DI)  39–​41 survey  22 survey questions  165–​6 Sweden  7

V value DI  8, 17, 68, 70, 71, 79–​84 van der Veer, H.  138, 139 van Hüllen, V.  80, 85 Van Parijs, P.  33, 44, 47 variable geometry  9, 10 Varraich, A.  72 veto  63 Viehoff, J.  47 von Bogdandy, A.  70, 79, 83 voting rights  22, 82–​3, 126, 133–​7, 150, 151, 156

T Theuns, T.  72, 80, 82 Thym, D.  10, 18 traditional-​authoritarian-​nationalist (TAN) parties  140, 141, 142 Treaty on European Union (TEU)  8, 14, 34 club goods  37 devolution  58 enhanced cooperation  40–​1 procedural fairness  41–​2 sovereignty DI  39–​40, 46, 64, 74 substantive fairness  42 Treaty on the Functioning of the European Union (TFEU)  6, 42, 64–​5, 79, 81 Treib, O.  70, 79, 80, 140, 151, 152 Trenz, H.-​J.  15, 107, 125 Tsoukalis, L.  11 Turnbull-​Dugarte, S.J.  18

W Walker, N.  78 Wallonia  63 Weiler, J.  76, 77, 78 Weiss judgement  74, 75 White, J.  18 widening integration  109, 112–​13, 119 Williams, G.  20 Winzen, T.  1, 5, 7, 89, 109 world economy  38 World Trade Organization (WTO)  3, 38

Y Yanow, D.  19 Young, I.M.  14, 17 Ypi, L.  18, 42

U uniform integration  13–​14

189

“This superb book provides a highly stimulating and innovative take on differentiated integration. The unique combination of normative political theory and empirical analysis is not to be missed by anybody seriously interested in this topic of growing concern.” Dirk Leuffen, University of Konstanz

The European Union (EU) is often portrayed as sacrificing national diversity for European unity. This book explores the alternative of a flexible EU based on differentiated rather than uniform integration. The authors combine normative theory with empirical research on political party actors to assess the desirability and political acceptability of differentiated integration as a means of accommodating heterogeneity in the EU. They examine the circumstances and institutional design needed for flexibility to promote rather than undermine fairness and democracy within and between member states.

Richard Bellamy is Professor of Political Science at University College London. Sandra Kröger is Associate Professor in Politics at the University of Exeter. Marta Lorimer is Fellow in European Politics at the London School of Economics and Political Science.

Clear, balanced, and accessible, the book provides fresh thinking on the future of the EU.

ISBN 978-1-5292-1992-0

@BrisUniPress BristolUniversityPress bristoluniversitypress.co.uk

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