Why the Double Standards?

We are living in a time when the EU elite are depicting and reflecting political and social realities less and less, but is conversely increasingly creating its own conception of the world. For this purpose, they are not placing limits on the methods they employ, which include ambiguous moral standards and the promulgation of dogmata to justify their ignorance of one another’s sovereignty. This is a dangerous course to embark upon, since it undermines the fundaments of the constitutional states and the rule of law. The EU elite are about to lose their credibility by misusing the ideas and traditions of democracy and the rule of law, reducing them to mere slogans in a race to the bottom. By pointing their fingers at Member States marching to a different tune they are telling the public in no uncertain terms: Gods may do what cattle may not.

It started with a kiss: how Juncker wooed Trump — Much of the leading Western media has recently been celebrating what they called a successful step in de-escalating the trade war between the United States and the European Union. I came to make a deal, and we have a deal, Juncker proclaimed in an interview with the German Broadcasting Company ARD. Critics argue that the President of the European Commission does not have the power to negotiate international agreements, but they are drowned out by the political and media elite enforcing their own interests. Does this comply with the EU’s constitutional framework in accordance with the rule of law? By no means, but Juncker managed to achieve what Merkel and Macron could not, a German US-correspondent concluded. Mission accomplished. EU societies, however, have to live with a dubious EU-US trade deal, something like a “TTIP light”. Gone are the days when this controversial trade deal was passionately discussed. It seems that the normative power of the factual gets the upper hand.

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Catchwords and Combat Terms

Scene change: By the end of 2017, the EU Commission had initiated infringement proceedings against Poland because of an alleged breach of Article 7 of the Treaty on European Union. The offending object is Poland´s latest judicial reform. And the Commission is currently preparing for infringement proceedings against Hungary, also because of a purported undermining of the rule of law and a potentially serious breach of the values referred to in Article 2.

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.

What seems to be a contradiction in terms turns out to be an integrative part of the EU elite’s policy. Instead of engaging in substantial political discourse within and outside their own ranks, the elite continue to promulgate dogmata to justify their ignorance of the national states’ sovereignty. Flanked by leading media, senior representatives of the EU institutional bodies are crusading against those national governments that are marching to a different tune, misusing the ideas and traditions of democracy and rule of law and downgrading them to mere catchwords and combat terms. However, when talking about the rule of law the EU would do better to get its own house in order first. Instead of swinging the moral club to avoid any substantial political discourse, the EU elite and leading media should question their own attitudes towards the rule of law, and its application within the European Union.

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To Each His Own

Why the double standards? Isn’t this contrary to the principle of equality, a central nucleus of the occidental understanding of the rule of law? By applying double standards, the EU elite are infringing upon the classic legal principle of “suum cuique”[1]. For centuries this legal principle has served as an indispensable basis in understanding what is “lawful” in the sense of Aristotle’s logic of “corrective” and “distributive” justice. Pursuant legal positivism, “law” may only be drawn up in a specific form or in a particular manner and on a constitutional basis. But the EU lacks this very constitutional basis due to the fact that it lacks a coherent legal system at all levels. At national levels, the EU comprises legal systems with both common and civil law or combinations thereof. Since it lacks a constitutional basis and a coherent legal system at all levels, a coherent hierarchical structure of the legal system is also missing. For a long time, the EU elite have been shirking responsibility concerning this, time and time again accepting irresolvable conflicts of fundamental rights and norms. However, the EU elite do not stop at double standards. Initiating infringement proceedings against Member States because of a purported undermining of the rule of law testifies to ambiguous moral standards. How can a Member State be accused of undermining the rule of law by the European Commission, if the Commission itself is not submitted to the rule of law? How can a Member State be sanctioned for having passed a law in a specific form and particular manner specified in its constitution, simply because the content of the law does not conform to the elite’s political will and plans? Does a Member State have to accept sovereignty infringement for the sake of the elite’s power-political interests?

System Error

We are witnesses to a period in time when not only media but also the political elite are decreasingly committing themselves to the diversity of opinions, but increasingly indoctrinating the public with their political and social dogmas. But promulgating dogmata and swinging the moral club cannot (and must not) hide the EU’s democratic deficits, which include the absence of a constitutional framework and a coherent legal system at all levels. This “system error” is the logic of checks and balances intrinsic to the European Union. Albeit dedicating itself to the values of “democracy” and “rule of law”, the EU institutional system does not provide for constant participation of the Member States’ peoples and their representatives when it comes to legislation.

The European Commission, as the EU's executive body, has the right of initiative and thus proposes new legislation. The European Court, on the other hand, is responsible for the authoritative interpretation of European law and any dispute relating to the application of this law. It ensures the uniform application of EU law in all EU countries, thereby contributing to the development and dissemination of community law. The actual legislative bodies — the Council and the Parliament of the EU — are quite often outmanoeuvred by these two powerful institutions.

As if this wasn’t enough, there are a few extremely delicate political issues completely absent from both political participation and constitutionally grounded legislation. Have the EU elite, headed by the President of the Commission, ever tried to get to the bottom of the democratic accountability of the European Central Bank? Have they ever asked themselves whether the bank’s bond purchases or the Euro Rescue Fund comply with the rule of law principle? Is the President of the European Commission authorized to conclude a trade agreement with the United States, if only by a handshake?

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Quod licet Iovi, not licet bovi [2]

We are living in a time when the EU elite are depicting and reflecting political and social realities less and less, but is conversely increasingly creating its own conception of the world. For this purpose, they are not placing limits on the methods they employ, which include ambiguous moral standards and the promulgation of dogmata to justify their ignorance of one another’s sovereignty. This is a dangerous course to embark upon, since it undermines the fundaments of the constitutional states and the rule of law. The EU elite are about to lose their credibility by misusing the ideas and traditions of democracy and the rule of law, reducing them to mere slogans in a race to the bottom. By pointing their fingers at Member States marching to a different tune they are telling the public in no uncertain terms: Gods may do what cattle may not.

Post Scriptum

The EU elite, in alliance with leading media, are harshly criticising “propaganda” and “fake news” within and outside their ranks. Their response is a “juridification” of their political language, trying to legitimise their power-political interests by conjuring the values of democracy and the rule of law. Instead of magnifying a question of faith, the EU would do better to engage in serious political discourse, though.

First published on Creative Diplomacy.

1. To each his own

2. Gods may do what cattle may not