Joseph H. H. Weiler on the Absence of Liberal Democratic Soul Searching and the Need to Fix European Democracy
In this conversation with Petr Agha, Joseph H. H. Weiler discusses the EU’s persistent democratic deficit and how the Union’s equilibrium has been disrupted; explores the rise of populism and questions of national identity; contrasts Eastern and Western Europe; and reflects on the evolving geopolitical landscape.
“Let’s fix European democracy first, and then I would be in favour of majoritarianism because veto power is undemocratic.”
Petr Agha: Do you believe that the narrative that you presented in the 1990s, which emphasizes law as a transformative tool and portrays the European Union as a technocratic project, remains valid today? Or do you think Europe requires a new approach and understanding in framing its identity and purpose?
Joseph H. H. Weiler: In 1990 I said that the legal transformation of the EU Treaties’ constitutionalization is the core difference between the European Union and any other international organisation. It is unprecedented – it has never happened before and no one else has done it.
But my core thesis was different: it was that European constitutionalization created an equilibrium and this equilibrium not only explained why the Member States were willing to accept this legal transformation but also why they guaranteed its stability.
The equilibrium was that the law of the European Union is the law of the land – it does not only bind states, but it also binds individuals, and it gives rights to them. That is a radical innovation. And it is the supreme law of the land, over the constitutions of the Member States. It is the relationship between law and politics. It is the Member States who control what law will be part of the European Union. That equilibrium explains both the risk, the acceptance of the transformation, and its stability. If you disrupt the equilibrium, then you disrupt the stability of Europe.
The equilibrium has been disrupted. First of all, the European Court of Justice has emerged as a major lawmaker and the Member States do not control that. Secondly, majority voting was introduced. Thirdly, and this is crucial, the sphere of the European Union’s competences has enlarged dramatically.
Despite all my admiration for the European Court of Justice, it has failed in one respect: to be an effective policeman of the jurisdiction of the European Union.
There are only two cases in the history of the court where it has struck down a Union measure because the Union exceeded its competences.
How does the concept of a ‘democratic deficit’ in decision-making within the European Union impact its governance and policy direction, and what are the key features that are lacking in EU decision-making processes compared to those of its Member States? Additionally, what are the implications of this deficit for the ability of EU citizens to influence governance and shape policy direction, particularly in comparison to national democratic systems?
We must add one thing here that I did not treat in The Transformation of Europe, but that I have been writing about for the last 20 years: the persistent democratic deficit in the way the Union takes its decisions. I can explain this in 30 seconds. In all our Member States we have different democratic systems – the German system is different from the Italian, the Italian is different from the Czech, the Czech is different from the Spanish. But there are two features which are common to all these systems. These features do not define democracy, but without them there is a real democratic deficit. First of all, we get to choose who will govern us so that every four years, or every five years, or every six years there is an election, and you can say: I do not like the current government, I want another. We do not have that possibility in the European Union. We do not only get to decide by whom we will be governed or by whom we will not be governed. The British have a wonderful expression for this: we have the ability to kick the scoundrels out. We do not have that possibility in the EU.
The second point is that if enough people vote centre-right, then there will be centre-right policies. If enough people vote centre-left, then there will be centre-left policies. We do not only decide who will govern us or who will not govern us, we also decide in what direction we want to be governed.
Elections to the European Parliament have no impact on the policy direction of the European Union, so the citizens of the European Union lack the possibility to decide who they will be governed by and who they will not be governed by and what direction the governance will take.
Nobody has been able to show a systematic connection between the outcome of the elections to the European Parliament and the policies of the EU, such as austerity or growth.
Let us go back now to The Transformation of Europe. In my view the enduring value of that article is that that equilibrium between politics and law has been disrupted. That explains many things. It explains the crises. It explains the rise of Euroscepticism, which used to be on the lunatic fringe on the right and the lunatic fringe on the left. Now it is central to European politics. It is at the centre of the debates over more Europe, less Europe, populism, etc. One of the hot issues of populism is the European Union. It was never like that before.
On the one hand, this is positive because suddenly Europe is at the centre of politics. But on the other, it shows that we have disrupted the equilibrium that I explained. This is summed up in the slogan of Brexit, which is relevant to the debate about Europe in all Member States: taking back control. This feeling that we do not have control over what the European Union does is a disruption of the equilibrium that I explained in The Transformation of Europe.
How has the evolving geopolitical landscape within the European Union, particularly with the emergence of East European nations as significant players, impacted the narrative and cohesion of the EU?
Possibly in two ways. First of all, at least for a time, Europe took more than an interest in what was happening in Ukraine. The position was not that this was foreign policy, geopolitics, and so it was not relevant to the European Union. There were two or three things that happened which changed the narrative. The first thing, which is a little bit romantic but very important, was that we were reminded of our core values – liberty, human rights, etc. The reaction to Ukraine was not simply that Russia had violated international law, it was an aggressive war, etc. It was a humane story, so it was a reminder to Europeans of what we are about.
The second thing is that, for decades, if there was one thing that the Member States always said it was that security and defense were the domain of the nation. That was the core of sovereignty. Europe cannot touch that. That is now broken.
Europe is giving munitions and military aid to Ukraine. 10 years ago that would have been unimaginable, and suddenly Europe has breached that, for good or for bad, and it is a new narrative. Thirdly, we are suddenly speaking as Europeans because we have realised that it is still a dangerous world despite the idea that war in Europe has become unthinkable.
How has recent geopolitical tension, particularly with regards to Russia’s actions in Ukraine, reshaped perspectives on defence and nationalism in Europe, specifically in East European countries like Poland and Hungary?
Suddenly we realise that we do not have the capacity to defend ourselves if the Russians decided to take Latvia or Lithuania or another country. This is not an impossibility, because even two weeks before the invasion of Ukraine everybody except the CIA was saying that it was not possible. Not only have we been reminded that war in Europe is possible, but we have also realised that for 70 years we have been thinking about butter and not thinking about guns, and we know we depend on the American cavalry. Suddenly there is this anxiety, especially in Eastern Europe, that we cannot really defend ourselves. For the third time in history, we will depend on the Americans if something like that happens. I do not know what the consequences of that will be, although there is already talk about the European army. But this is a really significant change of the narrative.
Here is something that the old European Union, the Franco-German axis, gets angry about and does not understand. They look at Poland and Hungary and they do not understand why a national or a nationalist narrative is so appealing to people.
My intention is not to defend Orbán or Kaczyński, but in Europe there is one word that is like profanity, which is patriotism. You are not allowed to say, “I am a French patriot.” You are not allowed to say, “I am a Spanish patriot.” You are certainly not allowed to say, “I am a German patriot.” That is a bad word because it reminds us of fascism and Nazism. Why is that so? Because the historical memory is of the Second World War. Look what nationalism did to us. So, the mind-set is that we have to be supranational because nationalism is toxic.
What factors contribute to the contrasting narratives between Eastern and Western Europe regarding national identity, particularly in the aftermath of Communist rule? How does the suppression of national identity during Communist regimes influence the desire for its celebration post-liberation? How do these contrasting perspectives on nationalism pose dilemmas for the European Union’s ideal of supranationalism, and what are the implications for liberal democracy in the region?
The narrative of Eastern Europe is very different. The Second World War is no longer the immediate past. The more recent history is 40-50 years of communist rule and one of the things that communist rule did was to suppress national identity. You are a communist. You are not a Pole, you are a communist, you are not a Hungarian, you are a communist, etc. When people get liberated from the Soviet empire and from Communist rule, they want to celebrate their national identity. I can finally be a Pole, and in Poland it means I can be Catholic. Finally, I can be Hungarian. Finally, I can be Czech. I am not afraid to celebrate my national identity. Then they see Europe as another power which is trying to suppress them.
I am not making a judgement here, but I think that it is totally legitimate – provided there is liberal democracy – to celebrate your national identity, especially if it was suppressed for 40 years, and to say “let’s see what is good and special about being Polish, Hungarian, Czech.”
In Western Europe, they do not understand that and then they say: How can they not buy into the ideal of Europe, which is to suppress nationalism and to be supranational? That is one of the dilemmas that the Union is facing. It does not understand the legitimate desire of people to celebrate their specialness, their peculiarity, what is distinctive about them. We are all human beings, but there is something special about the Polish language, Polish literature. It is a nation of poets. This can be abused, and it is abused – Orbán abuses it in Hungary. But we have to explain why this is so attractive to people. I do not believe that 20 million Poles have become fascists. Instead, the feeling is that, finally, we can be Polish and not communist. So that is a new narrative. And as yet it is unresolved.
What are the potential implications of the Franco-German initiative to reform the institutions and transition to a majoritarian system within the European Union? Do you believe this shift is advantageous, and how might it shape the future trajectory of the Union?
First of all, I think that they are insincere. They are insincere in the sense that it sounds good to propose it, but they know that it will not be accepted. So, they want to look as if they are the good guys and will let the bad guys block it. I am in favour of majoritarian decision-making but, if you look at the agenda of the Conference for the Future of Europe or the recent Brussels summit and the Madrid summit, they are pretending as if there is no democratic problem in the governance of Europe.
Yes, we need majoritarian decision-making, but first let’s fix European democracy. Majoritarianism without fixing European democracy is a problem for me.
Fixing the problem is not on the agenda because everybody is under the mistaken belief that, since the European Parliament has full powers as a co-legislature, there is no more democratic problem for Europe. As I explained before, that is just not true because of the structure of European governance. The people do not have the ability to control those two basic notions of democracy: I can decide by whom I will be governed, and I can decide what direction policy will take. Majoritarianism would aggravate that problem.
Let’s fix European democracy first, and then I would be in favour of majoritarianism because veto power is undemocratic.
What underlying structural issues within the EU and its Member States might be revealed by the deployment of this narrative, and how does its repetition exacerbate existing tensions?
The immediate conjecture among European leaders is that we want to do these things, but Orbán is blocking it or, until a few weeks ago, Kaczyński was blocking it so this veto power is killing us. How can we allow that to happen? An aid package to Ukraine was blocked by a single vote by Hungary. I understand that this is extremely frustrating. Orbán is outside the consensus because he openly speaks about illiberal democracy. To me, that is an oxymoron. If it is illiberal, it is not democracy.
But, as I said, I understand the frustration that, in all the talk of the reform of Europe, there is no attention given to the democratic deficit. They are going half the way. They have to go the full way. It has to be a package deal. We can move to majoritarianism, but we have to fix the democratic governance structures of Europe. But that is not on the leaders’ agenda.
Amidst discussions on democratic deficits in the European Commission’s decision-making, and while acknowledging its complex structure, where do you believe the locus of governance lies in Europe today? Considering various sources of legitimacy and acknowledging problematic aspects, who or what entity holds the reins of power in shaping the most pivotal decisions within the European Union?
First of all, I will say where there is not power.
Out of all the checks and balances, there is a disempowerment of national parliaments. There is a strengthening of the executive branch in all our Member States because of Europe.
The European Parliament is important, but if you look historically there are some very interesting data. The first direct elections to the European Parliament were in 1979 and there was a relatively low turnout by voters compared to the turnout for national elections. Everybody said that there are so few people going and voting so how can that be a directly elected Parliament? Then the thesis was that it was not surprising because the European Parliament had no powers. The proposed solution was that if the European Parliament is given powers, then people will go and vote. So progressively from 1979 onwards the European Parliament has gained more and more power so that it is now a co-legislature with the Council. Every election fewer and fewer people went and voted for the European Parliament, except the last election when there was a little uptick, and that was by the Eurosceptics. This shows us that it is difficult to think of the European Parliament as the vox populi.
So where does the power rest? It rests with the executive branch of the Member States, and despite what some say it is still France and Germany that call the shots in the following sense: they cannot dictate to Europe, but nothing happens if the French and the Germans do not want it to happen.
The only reason we had the COVID-19 recovery fund is because Merkel changed her mind and said let’s have a recovery fund. That is another change of the narrative. For the first time Europe is borrowing money.
What factors contribute to the lack of accountability in the decision-making processes of the executive branches of governments within the European Union, particularly regarding borrowing money from banks?
That is a very big change. The executive branches of the governments of the Member States and the bureaucracies, the civil servants discovered the beauty of being able to borrow money. Who governs and where exactly is amorphous. I am against the concept of a “deep state” and all that. That is nonsense. But if you look at the decision-making process it is a combination. The Commission is still very strong, so power lies between the Commission and the European Council.
But, if you want, there is no accountability. If you want to point a finger, then there is a different answer to your question. No matter where the decision making takes place in the EU, there is no accountability.
We have seen Commissioners being fired or resigning because of personal corruption, but we have never seen a Commission being dismissed because it failed, and the promises that it made had not been realised.
There is no political accountability.
In The Transformation of Europe, you suggested that Europe could function as a barrier against global capital. Do you think that the European Union of today has fully embraced market ideology, or do you still perceive it to be a bulwark against global capital?
There is a contradiction because, on the one hand, ecological concerns and some forms of social justice have become part of the narrative. All your readers have to do is to compare the preambles to the successive EU Treaties. But what remains the most important thing is the single market, and the single market means ordoliberalism, which is the old word for neoliberalism. That is still there and very powerfully so.
I will tell you about one area that shows the contradiction. One of the greatest manifestations of capital today are the richest corporations of the digital sector – Meta, Alibaba, Google, X, etc. Europe is at the forefront of regulating them, right? That is a sign. Yes, we think that these things are important, but where is the paradox? It screams at you.
Europe does the regulation whereas China and the United States do the technological innovation. In my view, which I cannot prove but I put out as a hypothesis, there is a connection between the two.
So, Europe regulates, and we have now new regulation on artificial intelligence, the Digital Market act, digital services at the DSA and, of course, the famous GDPR privacy. It is all very useful and good, but where is the innovation and the technology? You find them in Silicon Valley. And Germany is investing hugely in the development of electric vehicles in China. That shows you the paradox. We tried to control the digital market, but we are not developing our own markets.
An interview discussing Europe would be incomplete without addressing the topic of populism. The surge in studies on populism was initially rather simplistic, but over time an increasing number of scholars have recognized its multifaceted nature. Populism is not merely a phenomenon in itself; rather, it can be viewed as a reaction to the EU’s extreme legalism or as an expression of popular will, countering the EU’s technocratic tendencies. How do you perceive populism? Is it merely a symptom of democratic erosion, or should Europe regard it as a significant issue that deserves serious attention?
First of all, I do not like the word populism. If we like something, we call it popular. If we do not like it, we call it populism. The second thing is that I do not believe that millions and millions of Europeans suddenly became fascists. In their discourse on populism, liberal democrats, the European elite, la class politique do not ask what have we done wrong so that people like Marine Le Pen and Giorgia Meloni have become popular? There is no soul searching. There is only pointing the finger at these horrible populists.
There must have been something wrong in the way that we were managing things so that this type of politician suddenly became popular to millions of people and is no longer at the fringes.
My answer covers three reasons. The first is – and this is the standard answer – materialist. We did not distribute the desserts of globalization well. It made our societies much richer, but in a very unequal way. People resent that.
The second reason for populism is that they tell us we have human rights, but it is not human rights which is the major problem. It is power. People feel disempowered. It amounts to a different way of expressing the democratic deficit. That is why ‘taking back control’ is such a powerful slogan everywhere. The third reason is that we say we are united in diversity – that is the motto of Europe. But we were not attentive to the legitimate desire of people to celebrate their national particularity – to be patriotic as a discipline of love, not as a fascist discipline. The fascist view of patriotism is that you belong to the state – Deutschland über Alles. The Republican version of patriotism is that the state belongs to me, it is my state. Whatever happens I can control it, I can shape it. But the only time in Europe when it is legitimate to wave the national flag is in a football match. Otherwise, it is subversive, it is ugly, it is fascism, etc. In my view, I have a better essay than The Transformation of Europe. It’s called To be a European Citizen. That is where I explain that argument. So, there are the three factors that in my interpretation explain why populism became so popular.
I lament that, in all the writing about populism, it is always pointing fingers at these bad populists and never pointing fingers at ourselves. What did we get wrong?
I am intrigued by the fact that in Europe there is a notable dynamic between the centre and the periphery, which is not a recent phenomenon. If we examine both historical and contemporary Europe, we can easily discern these dynamics that are akin to fault lines. Additionally, various aspects such as attitudes towards populism, approaches to European affairs, and numerous other facets of the European Union seem to reflect this dynamic. Do you believe that the centre-periphery dynamic is a significant factor that contributes towards many of the clashes that we witness in Europe today? And do you perceive a resurgence of interest in, or attachment to, the idea of Europe?
Is it centre-periphery, or old-new Europe? I am also critical of ‘new Europe’ because the European game of Poles, Hungarians, Slovaks, Czechs, and Romanians has always been to take care of their own interests.
The ‘new Europe’ never had the change of consciousness which said “we are an important part of Europe. We should be central in the discussion of shaping the future of Europe.” All they were worried about in every debate was: what is in it for me?
It is their fault – these are responsible people, responsible politicians, responsible parties, and responsible parliaments. They never said: no, we have to be a critical voice in shaping Europe. Why is the initiative for the new Europe coming out from Berlin and Paris now and not from Warsaw and Bucharest? These are big countries, and millions of people.
I would propose that there exists a rationale for this: the entire cohort of elites in Central and Eastern European nations has been nurtured within a distinct environment. In this environment, Central and Eastern European countries were not viewed as significant actors; rather, they were perceived as pupils learning to adopt a European identity. Consequently, they lack a strong sense of connection because these circumstances are deeply rooted in history and their developmental path.
That is an explanation which I do not deny. But how long are you going to play the poor child game? It is an explanation, but is it a justification? I had a deprived childhood, so for the rest of my life I can plead my deprived childhood…
Maybe the war in Ukraine is a platform to become more active in shaping European affairs?
We can indeed already see that, and you can understand and explain it. But there is not an East European voice on Ukraine, and there is not a West European voice on Ukraine. In the East, you have Poland in one direction and Hungary in another direction. And do you think everybody in Western Europe is going: oh, let’s help the Ukrainians? Of course not.
But the failure of Eastern Europe to emerge as a central player in the shaping of Europe is due to populism, I would say, even if my critique is that in Western Europe people were always pointing fingers at the populist and not doing their own soul searching.
But with this I am not willing to give a free ride to the East Europeans.
How long are you going to pretend to be the poor children? You are powerful, but you used all your power to protect your national interest instead of saying no, we have a responsibility for the whole of Europe.
Joseph H.H. Weiler OMRI is an American academic, currently serving as European Union Jean Monnet Chair at New York University School of Law and Senior Fellow of the Minda de Gunzburg Center for European Studies, Harvard University. He was President of the European University Institute in Florence from 2013 until 2016. Weiler is the author of works relating to the sui generis character of the European Union. He is a Fellow of the American Academy of Arts and Sciences. In 2022 he was awarded the Ratzinger Prize by Pope Francis.
This conversation was conducted by Petr Agha. His research and teaching focuses on some foundational issues and challenges in contemporary law and politics. He is the editor of Human Rights between Law and Politics (Hart Publishing), Law, Politics and the Gender Binary (Routledge) and Velvet Capitalism (Routledge).
