Brexit, Identity, and the Value of EU Citizenship: the Insider-Outsider Perspective

Stijn Smismans*

Identity: (strongest first) European, Flemish (culturally rather than politically),[1] Belgian (that is what is on my passport), Dendermondenaar (town of birth), Italian (decade there left strong imprint), British (through professional environment more than a decade of residence, and passport of son), Spanish (passport of wife and son), French (four years of residence), Torinese and Bristolian (two cities I have lived in more than the passing-by couple of years I spent in many other places).

Writing about Brexit is a challenge. As the daily reality changes at high speed, ex post analysis looks out-dated, while predictions of the future are really not the preferred domain of academic writing (even for a lawyer). In this context, I welcomed Christian Joerges’ invitation to contribute to this paper by writing about Brexit from a personal perspective. The idea is an interesting one; in the flood of daily information, the personal perspective sheds light on the living experience of the Brexit reality.

There are several personal Brexit stories to tell. The first one is that of the EU citizen who is an academic in the UK. As a professor of EU law, for instance, I am pretty sure my undergraduate EU law course will no longer be compulsory, but this probably only means that I will have less, but more interested, students on it. More problematically, Brexit may well undermine our two post-graduate EU focused programmes in the likely event of the fees become prohibitive for European students. But most problematical is the loss of European funding. Given how the EU dealt with Switzerland once it intended to limit the free movement of persons, it is highly unlikely that the UK is still going to receive EU research money. And, given the way EU research money has allowed me to do what I like doing most in this job, i.e., research, the absence of any replacement UK funding may well be a sufficient key driver to make me move somewhere else. This little story tells something about the fate of EU studies and, more broadly, the future of academia in this country. The UK, for instance, is the biggest receiver of grants from the European Research Council, and many of those grants are awarded to non-British citizens. Without EU funding, and strong uncertainty as to whether there will be any compensating UK funding, the UK will become a far less attractive place for research. The pestering of EU citizens and the dilution of their rights that Brexit may entail (see below) is not going to help, either. All this adds to other factors that have been undermining the attractiveness of British universities for some time, such as the ever increasing bureaucratisation, the managerialism and workload pressure, and the introduction of a national teaching-quality assessment (similar to the research assessment, but raising (even) far more problematical questions in terms of measuring such quality by criteria such as student satisfaction) in an attempt to justify the extraordinarily high tuition fees.

But it is not my aim here to tell the little story of how academia in the UK will be affected by Brexit. The personal story that I want to tell is another one. It is the personal story of the insider-outsider, and this has to be told in a double way. As an EU citizen living in this country, one is an insider who has to live through Brexit in a very personal and direct way, while, at the same time, being stigmatised as the outsider. Narrating this personal story tells us something more broadly about the value of European citizenship. At the same time, the insider-outsider perspective allows us to shed a different light on the developments in this country. EU citizens who have resided in more than one country, facilitated by EU citizenship, have a different story to tell. Relying on their lived experience in different countries, they can provide an insider-outsider perspective that both the insiders and the outsiders lack.

Having resided nearly a decade in the UK, my insider-outsider perspective during the referendum campaign became quickly clear when discussing the topic with colleagues and friends. I soon got the impression that most of my British colleagues were much less worried about the outcome of the referendum than I was. To be honest, while I had had a lingering worry from the moment the referendum idea was launched, it was only during the campaign that I really started thinking through all the potential consequences of Brexit and the massive costs that it would have. Chatting about the topic in the corridors of our daily academic routine, many British colleagues appeared convinced that there would never be a majority for Brexit; as some said, this was because “we British are pragmatists”. Pragmatists? Over the last decades, whenever, on “the continent”, a political party on the right tried to carve out a space for itself on ideological grounds, out of the muddled ground of Christian democratic and social democratic centrist politics, it would look to the British Conservatives. Equally so, on the left of the political spectrum, where the only ideological debate appeared to be set by the British “third way”. More recently, the new identitarian politics in Central and Eastern Europe, as well as a more radical post-crisis ideology on the left may have changed the picture, but, for decades, it looked as though, if one wanted to be ideological, one had to go British. So much for British pragmatism. As a Belgian, who has also lived a decade in Italy, my idea of political pragmatism is clearly different from that of my British colleagues!

Having lived in the Belgian, French and Italian welfare state, I also appeared to have a different perception on the huge social cleavages that fracture the UK. I soon suspected the referendum would become the occasion to throw that reality in the face of “the élite”. Moreover, even for somebody who has lived a decade in Italy under the Berlusconi “regime”, the polarized and poor quality of the media in the UK has never stopped surprising me. All this made me much more pessimistic about the referendum outcome than most of my colleagues.

In what follows, I will link my personal experience as an insider-outsider during the referendum and post-referendum debate with two broader questions: 1) the role of the media and participation in modern democracy; and 2) identity and the value of European citizenship.

Traditional and Social Media and Exclusionary Politics

During the referendum campaign, my university was approached under the Transparency Act to disclose the EU funding that the Cardiff Centre for European Law and Governance had obtained through its recognition as a Jean Monnet Centre of Excellence. The request came from UKIP. We had no problem in disclosing the information as both our EU budget as well as all the funded activities were already clearly listed on our website, including a long list of seminars organised over the last years, which have often been very critical on the state of affairs in the EU.

During the same period, I received an email from somebody claiming to be interested in doing a Ph.D in Cardiff but asking for clarification as to whether we would have a problem with him being very critical of the EU and wanting the UK to be out of it. The nature of the email and proposed topic (which would not have fitted our expertise) put some doubt on whether the person had any real intention of doing a Ph.D with us. When I also found out the person was very closely related to UKIP, I started wondering whether it was just an attempt to make us state that we only accept pro-EU research and subsequently depict us as the EU’s Trojan horse in the country. Attempts like this, to silence voices that might say something pro-European, are not entirely new in this country (and I can tell other stories in the context of previous EP elections, for instance), but they were strongly intensified during the referendum campaign.

UKIP engaging in disclosure requests on EU funding was just a minor institutional expression of attempts to silence informed voices on the EU. During the referendum campaign, the battle became much more intense on a personal level. The few (British) colleagues who took up the challenge to bring some element of expertise into a campaign that was characterised by ignorance and disinformation were marginalised in the traditional media and were viciously attacked on the social media, death threats included.

In this context, I made a difficult personal decision: I decided to refrain from actively contributing to the referendum debate. This was, above all, a strategic decision. In a context in which expert opinion in general was looked at with derision, the voice of the “enemy expert” would have even less of a chance of being heard. As the debate became ever more polarized, to the point of inciting feelings of hatred, my expert opinion would immediately have been put down as being obviously biased because it was expressed by the “damned foreigner” wanting to stay here. There are enough rational and informed people around, particularly in my direct environment, who would not take such a simplistic opinion; and I eagerly exchanged my views on Brexit with them in an informal way. But these were generally not the people to be convinced of a Remain vote. The debate had to be held outside the ivory tower of academia. However, whenever there was space for an EU expert on the media or on public debate events, I believed my British colleagues would have a higher chance of convincing an anti-EU crowd, particularly as this crowd had increasingly become an anti-immigrant crowd; and I am especially grateful to some of my direct colleagues for taking on this role.

Although my decision to refrain from active involvement in the referendum debate was mainly a strategic one, it also had a psychological dimension. Why would I volunteer to face all the insults and aggression if my action might even prove to be counter-productive? Moreover, at a personal level, I knew that facing such levels of aggression would make me feel myself to be an outsider. The most vile remarks or racist abuse might not be representative of the majority of this country, but if you are a direct victim of it such rationality may not counterweigh the creeping feeling that you had better re-consider whether this is the right place to live. However, avoiding masochistic sessions of being publicly insulted did not save me from feeling an outsider. It suddenly hit me that, without a voice, I was a complete outsider. I had no right to vote in the referendum, and despite being most directly concerned by the outcome and despite being an expert on the EU, raising my voice seemed both impossible and useless. This was the first time in more than two decades of “living abroad” that I really felt like an outsider. The referendum outcome only strengthened this feeling. The problem was not just that I could not identify with what appears to be the political and cultural opinion of the majority of this country. In a way, I had lived this experience already when living in Italy under the Berlusconi governments. There was a huge gap between my beliefs and values and what the majority of Italians were happy to vote for. At the same time, I felt part of the very large majority of the country who strongly opposed the government, and, although I had no right to vote, I felt in a position to be an active participating citizen able to voice his discontent. The difference between my Italian and my British experience is that only in the latter have I become the explicitly targeted outsider. The Berlusconi government held an anti-immigration discourse and policy but it was targeted at the “extracomunitari” (non-EU citizens). This left me in the fortunate position of being somebody who could strongly oppose these views, but could still feel part of the community, linking in with the large minority. It is only today that I realise how strongly the stigmatisation as an outsider affects even your ability to speak up. I have great empathy for the 48 per cent of British who voted Remain, and even for some who voted Brexit, but are shocked about the turn that politics has taken, to the extent that they say “I do not recognise my country anymore”. However, they still have voice, and the alienation that they feel is not the same as that of the targeted outsider.

That one could feel suddenly so estranged had much to do with the incredibly poor level of the public debate on Brexit. The abominable “quality” of the British tabloids is world famous, as well as their visceral hatred for the EU. One of the most shocking experiences during the referendum, though, was the very poor journalism of the BBC. A study by my colleagues in the School of Journalism at Cardiff University showed that, already, way before the referendum, the BBC’s coverage of EU issues was primarily concerned with representing Euro-sceptic voices and focusing on party-political conflict instead of substantive discussion.[2] During the referendum campaign, this only got worse. The BBC strongly reminded me of what happened with the Italian public TV RAI under the Berlusconi government. Journalists who are poorly informed about the EU considered that the neutrality of the broadcasting was ensured simply by applying a formalistic parity, the famous “par condicio”, between “pro” and “contra” speakers, most of whom were politicians rather than experts. Speakers could make whatever claims they liked, with journalists failing to ensure any quality control. The debate has also been incredibly inward looking. While the issue was about the UK’s relationship with the EU, the debate was entirely focused on internal political arguments, as if the UK-EU relationship could be redrafted by the UK alone. Moreover, the debate was entirely set by one side of the political spectrum; namely, UKIP and the Conservatives, with the latter providing a key voice for Leave and the main voice for Remain at the same time. Labour did not develop a clear vision or voice on the referendum, while both the Liberal Democrats and the Greens were marginalised in the media, silenced with the excuse that they were not representative enough in Parliament (a reasoning clearly not applied to UKIP). In the hands of the Conservatives, the Remain campaign could not provide any other discourse than future-predicting scaremongering about what would happen in the event of Brexit, as they found themselves unable to bring any positive message about European integration after decades of rubbishing it.

If the traditional media failed dramatically in ensuring an informed debate, the new social media raised even more problematical questions. Whoever believed the Internet would provide us with an easy tool to ensure democratic debate should think twice. Lies and half-truths were multiplied and multiplied with every click of the mouse and tap on the screen, without any intermediary aiming at fact-finding and quality control. On top of this, any comment section and forum would immediately turn into personal insults, and regularly racist abuse.

There was, mainly by the end of the campaign, some valuable information on the Internet, which was not easily available in the standard media, but, in all probability, it only reached a very limited audience. In a way, the Internet simply amplifies the trends in the traditional media. Brexit raises profound questions about democracy in times of the Internet, and, in particular, about the use of referenda.

Brexit showed a mixture of a failure of the traditional media to ensure quality control and fact-finding beyond political statements, combined with a very unbalanced political debate, as much of the opposition failed to develop an alternative narrative. Under these conditions, the Internet only exemplified the weaknesses of the political and traditional media debate. Continue reading

On the “Academic Other”

Leone Niglia*

I

Fyodor Dostoyevsky portrays Fyodor Pavlovich Karamazov as “one of those senseless persons who are very well capable of looking after their worldly affairs” and yet adding that “[a]s a general rule, people, even the wicked, are much more naïve and simple-hearted than we suppose. And we ourselves are, too”, thus postulating a universality in Fyodor’s character.

II

It has been held (a self-evident truth) that Britain is no longer an empire; and that, therefore, it has been delusional to vote by referendum to leave the EU, since the British are now discovering that they will be withdrawing from the EU constellation without having sufficient “imperial-like” resources to stand in the world on their own. But this is only a partial analysis. There is more at stake. There may no longer be vast territories held under colonial rule as was once the case, and, yet, “imperialism” is an enduring state of mind. One cannot under-estimate this state of mind, so diffused these days across much of Europe, and its potential to make things intelligible. To summarise a common understanding on the matter, this mentalité is about taking advantage and being confrontational, as opposed to an ethic of sharing, engagement and acknowledgement of the value of the “European other”. Ultimately, “Brexit” may be explained as signifying the attempt by parts of the population and of the élites to re-engineer these attitudes.

But, once again, there is more to this story of the renovated fortune of the imperial-like mentalité. The idea that the law of England should be subject to the “new legal order” has always been received with hesitation and reservations – despite Factortame. Despite the notorious zeal with which Britain appears to conform to the details of EU secondary legislation, a conception of British sovereignty could materialize that resists (one caveat: I use the present tense since, until further political developments, the UK is still a member of the EU) adapting and subjecting itself to a constitutional regime whereby determinations are not just political (legislative) but must also be justified in terms of the broader framework of a shared constitutional law as developed around the EU project. Let us contrast A.V. Dicey’s notion of parliamentary sovereignty:

“Parliament” has “the right to make or unmake any law whatever; and further … no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

The broader framework of the shared constitutional law encompasses “the European other”, and yet it is equally “constitutional” also in a national sense (Georges Scelle docet). From this vantage-point, parliaments cannot do “everything” (pace Dicey). The contentious debate about the place of fundamental rights in the UK is there to exemplify the enduring force of this peculiar attitude and its constitutional implications. The “Brexit” vote is not just an isolated fact happened on a rainy day on the British islands that make up the UK, but it is part of this broader structure of meanings. Continental jurists appear to be portraying “Brexit” as though they are associating, symbolically, Britain with the Dostoyevskian vagabond character (“un-tied” as it is, today even more so, from the continent) so eager and apt to take care of its interests nevertheless – as though Britain embodied what, to continental jurists, appears to be an almost “senseless” juridical position due to its resisting that “thing” central to continental laws, that is, the “order” of a constitution. In Europe’s predicament, it is legitimate to articulate an (open) discourse about the value of the place (“Land” or “Ortnung”) but recourse to the transnational (constitution) tells us something about preventing the trap of the doings of the Ortnungwhenever (falsely) universalised; to say it in another way, it helps us avoid forms of constitutional obscurantism. This looks all the more problematical if one only considers transnational academic exchanges as a result of the exposition of the English common law, and of Scots law, to the “irritations” of “the academic other”, as I am about to discuss them. Continue reading

Causes, Aftermath, and Future: The Three Stages of Brexit

Jo Eric Kushahl Murkens*

A friend of mine, who is French and lives in London, returned from holiday the day after the referendum. In an email to me, she wondered why she had bothered: she felt as though her home had been “vandalised” by half the people in the country. Most people I spoke to reported feelings of anger, shock, and disbelief in the immediate aftermath. These strong emotional reactions were entirely understandable given that their future right to work and live in the UK as EU citizens had just been put into question.

On second thoughts, however, why were we shocked? The Brexiters had run a very effective campaign, with slogans along the lines of “We want our country back” and “Let’s take back control”. The Remain camp had no response to this. David Cameron and George Osborne were simply not the right people to remind voters of this straightforward fact: it was not uncontrolled immigration from the EU that was responsible for the decline in public services throughout the country, but the austerity politics driven by Conservative Party ideology since 2010. The Brexiters had won the campaign effortlessly.

More importantly, we are not talking about mendacities, myths, and misinformation that were spread over the course of a two-month long referendum campaign. We are talking about the wilful and sustained distortion of the European project by British politicians and journalists from the very beginning, and especially since the date of accession in 1973. Could a referendum on EU membership ever have been won in the last 20 years, I ask myself? And should we not be positively surprised that almost half the British voters elected to remain in the EU?

Anger and irritation soon gave way to analysis and interpretation. The referendum was clearly not about the European Union. It revealed something significant about the United Kingdom. The United Kingdom was not unanimous, but split down the middle: Scotland and Northern Ireland voted to remain, England and Wales voted to leave. The two main political parties were not putting forward helpful proposals regarding Britain’s future relationship, but were in open meltdown over the Europe question. Embarrassingly, Britain had once again set itself up to fail over a serious policy choice. In 2003, Britain went to war upon the basis of unreliable information and without an exit strategy. In 2016, it conducted a referendum upon the basis of false promises and without a Brexit strategy. This is not a good time to be British, and it certainly is not a good time for Britain.

Constitutional analysis proved to be my pathway to hope and optimism. There is no way the UK can withdraw from the EU and expect to survive politically. European law is woven into the Belfast Agreement of 1998, which stands testament to a rare and recent British diplomatic achievement. It has brought peace to Northern Ireland and improved the relations between the Republic of Ireland and the UK. It is, of course, possible for the UK to leave the EU. But to begin that process without second thoughts for the Irish peace process is borderline criminal. Something similar needs to be said in relation to Scotland. The governing SNP have been quietly waiting for an excuse to hold a second independence referendum, and David Cameron has single-handedly given them a reason.

Few countries display much enthusiasm for the European Union. British people are certainly amongst the least knowledgeable in this respect. Ignorance about European institutions is one matter, but ignorance about one’s own constitution (and yes, the UK has a constitution) is unforgivable. At the very least, the 52 per cent should stop claiming that their slim majority should in any way be decisive.

As a state, the UK is neither centralised nor unified. It is de-centralised and fragmented. Scotland and Northern Ireland reveal the UK constitution at its most fragile. The new Prime Minister will need to tread very carefully. So far, only the homes of the 48 per cent have been vandalised. Pretty soon the UK, the home of 100 per cent, could cease to exist. No one voted for that in June 2016.

* This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2871428). The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

Brexit, Post-Truth Politics and the Triumph of a Messy Vision of Democracy over Technocracy

Sandra Marco Colino*

As I watched the last US presidential debate of the 2016 election live over breakfast a few weeks ago, I recalled the last time I had spent an entire morning glued to the television screen watching political developments unfold. It was on 24 June, when the results of the referendum on the UK’s membership of the European Union were announced live on the BBC (a perk of living in Hong Kong and being 7 hours ahead of the UK is that I can watch British election results in real time without having to pull an all-nighter). It was 11:40 am here when David Dimbleby confirmed what felt like the “chronicle of a death foretold” soon after the vote counts began to trickle in: the UK had chosen to leave the EU.

The news refused to sink in, even as I stared at the headline flashing across the screen. The outcome had a much more intense emotional impact on me than I had anticipated. On Brexit, I am both biased and non-biased: biased, as a Spaniard brought up in the UK, who has extensively exercised her rights as an EU citizen; and non-biased, for having made a career and a profession of the study of EU law for over two decades. And in my two capacities, my feelings were unanimous: my heart said remain, and my head said remain. More accurately, my head said “remain and revolt”, as I believe that the UK could have used its solid position within the EU to push for a superior process of integration. But remain nonetheless.

I have undoubtedly been shaped both as an individual and as a professional by the opportunities offered to me by my UK residency. My family moved to London when I was just 11 years old. Since then, I have spent a total of 12 crucial years living in Britain. My first job was at the University of Glasgow. Although I have retained my Spanish nationality and citizenship, and the UK may not be part of my DNA, it is most certainly a vital part of my inner fabric, and I deeply care about the country’s future, whether in or out of the EU. But equally important, I am an EU national, and I have extensively taken advantage of the myriad of privileges that this entails. I am one of the 3 million undergraduate students who have experienced what it is like to live and study in another European country (in my case, Germany) thanks to the EU’s Erasmus university exchange programme. I wrote my Ph.D. at the European University Institute in Florence with a grant partly funded by the EU. I have been a trainee at the European Commission, where I had the chance to witness EU law enforcement and policy-making as it happened. I have extensively exercised my free movement rights, having resided and/or worked in six different EU Member States. As a female and as an employee, I have benefited from gender equality protection and working conditions guaranteed by EU law. Unsurprisingly, I find it regrettable that the continuity of all of these life-changing benefits has now been compromised for UK citizens. The result of the referendum is often portrayed as a popular uprising against technocracy and élitism. However, it is unclear whether the potential loss of such privileges, even if seemingly by the will of the beneficiaries, is really a win for the British people or more of an own goal. The idea that citizens’ rights would be at the forefront of the concerns when deciding to call for a nationwide reflection on EU membership is debatable. After all, the referendum was propelled by the same political leadership that put a heavy price tag on tertiary education in some parts of the country; the very one that has pushed Britain into an age of austerity and growing inequality which the United Nations recently declared to be in breach of international human rights.

Continue reading

A World After Brexit?

Michelle Everson*

Brexit has befallen us. The world is a very different place, especially on the streets of London, where the sense of disbelief is palpable, and the insecurity (even fear) is tangible, as our so recently lived-dream of non-national, culturally-disregarding, globally-cosmopolitan community finds itself under a very present threat. Yet, life goes on and, barring any further surprises, the academic world must begin to deal with the consequences of Brexit, both with regard to retrospective explanation, and with a view to opening up perspectives for the world to come.

Citizenship in Movement

“[I]t would be neither satisfactory nor true to the development of the case law to reduce freedom of movement to a mere standard of promotion of trade between member states. It is important that the freedoms of movement fit into the broader framework of the objectives of the internal market and European citizenship. At present, freedoms of movement must be understood to be one of the essential elements of the ‘fundamental status of nationals of the member states’. They represent the cross-border dimension of the economic and social status conferred on European citizens.”

[Opinion of AG Poiares Maduro in Cases C-158 & 159/04, Alfa Vita Vassilopoulos AE v Greece, 2006 E.C.R. I-8135, paragraph 192.]

In my world of (economic and constitutional) European Law, it has long been an unthinking commonplace that the legal freedoms of the Single Market coalesce seamlessly with and reinforce the character of the individual living across the space of Europe, as a European Citizen; a citizen who is made so, by virtue of their movement within, or as an ancillary to the European market. This blind collapse of the civic and social into the economic is, nevertheless, a far more incendiary one than the dry formulations of an Advocate General of the European Court of Justice might anticipate.

Writing in the European Law Review in 2004, Hans Lindahl sought to remind European lawyers of the continuing currency of boundaries and barriers to movement in notions of exclusionary belonging, of the on-going relevance of Hannah Arendt’s concept of “spatiality”. Investigating the consequences of an emergent European “securitisation” discourse, Lindahl noted that spatiality is:

“[N]ot merely a geographical term. It relates not so much, and not primarily, to a piece of land as to the space between individuals in a group whose members are bound to, and at the same time separated and protected from each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws.”

 For all of its roots in a putative act of post-national liberal constitution, the old European continent was and is still prey to pre-political expressions of belonging; a communitarian impulse, then silently evinced in the binary distinction between those who were and those who were not “legally-resident” within the European space, and now explicitly re-asserted within myriad acts of individual brutality in the holding camps of Turkey and of Greece – our new EU colonial “protectorate”. Neither Libyans, Ghanaians, Congolese nor Pakistanis, it seems, may simply seek their citizenship within the movements of the European market.

Continue reading

Thinking Personally about Brexit

Mark Dawson*

I entered the EUI in 2005 as one of a dozen or so researchers from the UK. A running joke at the time was to do a quick round of the Mensa, or refectory, staring at tables of French sitting with French, German with German, Greek with Greek, etc., and remark what a success European academic integration had been! The broader truth, though, was that this was real integration – not just of chemicals and Cassis de Dijon, but of friends of all nationalities – sharing ideas, sharing drinks (and, of course, rather often sharing beds, too). It was an integration of peoples.

It is little surprise that those of us in the UK who returned to our home countries or filtered off elsewhere in Europe and the world were normally committed europhiles, even if we often pretended otherwise to ourselves. We had experienced what Neil Fligstein dubbed the “Euroclash” in person: we were the privileged, mobile few for whom the EU had provided four years of quiet reflection and good food in paradise. We also faced the shock of following UK politics from afar, or experiencing it in reality once home. For us, the EU was part and parcel of who we were. For our fellow Britons, it was a foreign entity. This identity clash explains part of what I can imagine is a common feeling among many contributors to this publication: the UK’s very rejection of integration makes it a somewhat foreign entity for me now too.

The integration of people had simply not occurred. Britons ventured abroad but often simply to buy flats in UK bubbles in the Costa del Sol, or to be a part of a different trans-national project – the vestiges of the old Commonwealth that offered the promise of freedom and prosperity not in Berlin but in Brisbane. Meanwhile, those who came to British shores were rather too easily cast as outsiders (people who were here as part of a market, to cash-in, rather than to contribute to society). This was not free movement but “economic migration”; it was not a reciprocal exercise but the entry of outsiders on the take (for “our jobs”, “our benefits”, and “our homes”). The reaction recalls the debate over gay rights a decade ago – one’s affinity to the cause was often not determined by political, but by personal affiliation: Do you know someone who is gay and are you able to step into their shoes? (hence, the priority of coming out to the LGBTQ movement). Too few people had a stake in the EU project, and too few were able to identify with those who did. Too few could make it onto that Tuscan hill with us.

Surely, the question that Brexit poses to all of us committed to, or simply interested in, the EU is how to build that stake. How does the EU become something that can be defended not just at the level of trade statistics, but as a personal and political project? One has the feeling that, without this connection, without a sense of commitment to Europeanism, however thin, the EU has no hope of facing down the next catastrophe. The dis-integration of the Union is not, in this sense, a question of self-interest and preferences – if it were, the people of the UK (already enjoying a cherry-picked version of integration) would have been easily bought over – but a question of whether people perceive Europe as being a part of the “self” that defines their interests.

Continue reading

“I want my Country Back!”: Equality, Discrimination and Xenophobia after the Referendum

Diamond Ashiagbor*

We’ve been asked to offer some personal reflections, hopefully mediated by scholarly insight, on the UK referendum vote on EU membership. The quotation in my title comes from the rallying cry of the “Leave” campaign. The resonance of that slogan with the claim of Donald Trump to “Make America Great Again” is telling, as both imply a nostalgia, or rather a fantasy, for a lost state: one which is fully “sovereign”, unfettered by international or supranational obligations, freed from the constraints of a liberalised global trading regime whose rules it had been responsible for crafting, and – most significantly – almost entirely free from migrants.

Before the Vote

I voted “Remain” in the UK referendum for all the obvious reasons. Because I believe the EU, for all its faults and its challenges to the “embedded liberal bargain” which many Member States had been able to strike within their national economies, represents the best chance for cross-national solidarity and some defence against unfettered global capital. Because I didn’t want to see the most openly racist political campaign that I can recall since coming to the UK in 1975 as – yes – a migrant, succeed. Because I think the UK’s social and economic ills (the housing crisis, with housing-cost inflation outstripping stagnant wages, the lack of investment in social housing, the prevalence of a high-cost, high-turnover private rented sector; the underfunding of the National Health Service; vicious austerity policies; and the failure to alleviate the devastating social costs of the post-industrial decline) are the fault of elected national politicians not the fault of the EU or of immigrants. Because I would like to hope that the UK could remain a (relatively) open, reflective, socially progressive country.

 False Statements and First Impressions

 The key legislation governing eligibility to vote and the conduct of elections in the UK, consolidating and replacing earlier statutes, is the Representation of the People Act (RPA) 1983. The European Referendum Act 2015, in Section 4, made provision to incorporate most aspects of electoral law from the RPA 1983 into the referendum process. However, whilst Section 106 of the RPA makes it an offence to make false statements “for the purpose of affecting the return of any candidate at the election”, there was no attempt to introduce a false statement offence tailored to the different circumstances of a referendum vote – i.e., where voters are not choosing between candidates, but between different answers to a question.

Opinions vary as to the merits of attempting legislatively to compel a form of “truth in political advertising” – e.g., the risks to freedom of speech and the risk of the judicialisation of politics versus the reality of the weakness of political sanctions and the weakness of the media role in generating informed debate. But it is certainly the case that the absence of any real guidance to voters during a febrile referendum campaign left voters, as Claus Offe notes in this paper, to their own individual means of will formation.

As it was, the Leave campaign blatantly lied about an imminent accession to the EU of Turkey, about the UK’s net contribution, about eurozone bailouts, about the mechanics of trade, about the NHS, about threats to national security, and, of course, about immigration. It was relatively silent about, or downplayed, the impact of a “Leave” vote on the markets, Sterling, the union and the retention of Scotland within that union, the border with the Republic of Ireland, the Gibraltar/Spain border, the frontier at Calais, the need to continue compliance with all EU regulations in order to retain membership of the single market, the ease and impact of negotiating trade deals with non-EU states, the status of UK citizens in other EU states, EU citizens in the UK, acquired rights, and the status of legislation transposed from EU law under the authority of the European Communities Act 1972. They were also dismissive of “experts”: economists, foreign policy analysts, legal scholars and practitioners, historians, other Europeans, and world leaders.

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Europe Unwell, yet Alive

Some Personal Reflections on the Brexit Referendum*

Christian Joerges, Berlin – Bremen

“What a disaster! Why did this happen and what does this mean?” – I had spent the days before the referendum in London, listened to a good number of intense, at times heated, debates – and left the “formerly United Kingdom” with both concerns and confidence – with the latter, however, remaining more weighty. The late evening news of 23 June 2016 confirmed my confidence. The awaking on the next morning, however, was all the more disturbing. Since then, we have all been continuously flooded with explanations, predictions, political signals. An essay-culture has been generated at turbo-speed both within the UK and “overseas”. There are highly informative high quality comments and blogs en masse which explore each and every aspect of post-Brexit constellations. The quality of these debates contrasts wonderfully with the emotionalised pre-Brexit “Leave” and “Remain” campaigns. We continentals learn about the complexities of the UK’s constitutional constellation, the ideational impact of historical experiences and traditions, the anxieties and anger of the dispossessed classes, and the downfall of the Labour party. These introspections are highly instructive for the non-British Union. They contribute to an improved awareness of Europe’s political and socio-economic diversity. Would it make sense to follow requests to join in these great and moving debates? Considering this query, I remembered Karl Valentin’s legendary barzelletta: “Everything has been said – but not by everybody.” Some uneasiness remained and grew, however. Within all these intellectual reflections on Brexit, I found little about the personal concerns which had generated my own spontaneous response to the result of the referendum. This is unsurprising in so far as my emotional confusion and conceptual irritations were that of a Doktorvater who had accompanied so many Ph.D students at the law department of the European University Institute in their research, and stayed in contact with a good number of them after they had embarked upon their academic careers. The students at the EUI come from all the Member States. For decades, the UK had welcomed them. British academia profited from this welcome culture – and so did our students. EUI graduates are, of course, a random sample of European citizens, but nevertheless one of exemplary importance. The EUI graduates have been Europeanised through their studies, through their co-operation with “foreigners” among their professors and fellow-students: they have become truly European academic citizens.

As a German professor, you are supposed to provide some theoretical framing for your intuitions and arguments. In the case in hand, a particularly ambitious framework suggests itself, namely, Jürgen Habermas’ theory of transnational democracy, which seeks to explain why the development of this new type of democracy is “Necessary and How it is Possible”. At the core of this explanation is Habermas’ theorem of the co-originality of the national and the European identities of the citizens of the EU, which he had first submitted in 2012. The innovative move that Habermas undertook is normatively fascinating. With his synthesising of national and European identities, the integration project becomes one of us, the citizens of the Union. Integration envisages our common future and a transnational political commitment. The anchoring of the project in the identities of Europe’s citizenry is a defence of its normative integrity, which seeks to liberate it from the merely economic or technocratic rational upon which the Monnet method of “integration by stealth” had relied. To appreciate the normative stringency and coherence of Habermas’ theorems, however, is not to believe in their political potential and socio-economic compatibility with the really existing state of the Union. The idea of a synthesis of national and European identities which would provide the basis for a transnational will-formation and solidarity contrasts sharply with the multitude of historical experiences, cultural traditions and political preferences, and, most importantly, with the ever deepening socio-economic diversity and the variety and institutionalised societal configurations which are generated by this background. The fragility of Habermas’ vision comes to the fore, albeit inadvertently, in  Habermas’ post-Brexit interview, published in DIE ZEIT on 9 July 2016 (see English translation): “It never entered my mind”, the philosopher submits in his reflections on the outcome of the referendum, “that populism would defeat capitalism in its country of origin. Given the existential importance of the banking sector for Great Britain and the media power and political clout of the City of London, it was unlikely that identity questions would prevail against interests.” What I find particularly remarkable here is Habermas’ apparent irritation. He not only recognises a mismatch between his visions and the actual conflict constellations as they were articulated in the “Remain” and “Leave” campaigns which was simply unforeseen in his theoretical framing of the development of a European transnational democracy, he is also prepared to draw drastic consequences. The “Development of the European Union into a Transnational Democracy”, he concludes, is only conceivable in a “properly functioning core Europe” composed of the members of the Eurozone – with the common currency operating as the empirical background of the reconciliation and merger of national and European identities. The tensions between Habermas’ normative vision and the political and socio-economic divergence of the Union in general, and of the eurozone in particular, seem as obvious as they are irresolvable within the Habermasian conceptualisation of the development of the integration project. Decades ago, in much more comforting times, Wolfgang Streeck criticised Habermas’ plea for a European constitution (see English translation) as all too voluntaristic. This seems more valid than ever.

This critique of Habermas’ visions is not meant to downplay the deep impact of the integration process on our identities as European citizens. Even the more mundane implications and effects can be valuable and are politically significant. To start with the seemingly mundane: European freedoms have granted us much more than the right to travel freely, to go shopping abroad, to profit from price differentials and to do all this without constantly changing our money. We, the academics, have instead been exposed to a host of new experiences, could learn from the encounters with “the others”, their academic cultures and practices; we could become aware of the specifics of our own traditions, contrast them with our new experiences, re-evaluate what we had grown up with and re-orient our work. These are gains and benefits which are highly contingent, often inextricably linked with periods of insecurity and recurring anxieties about individual futures. The Europeanisation of our identities neither occurred uniformly, nor can we easily identify their accumulated societal benefits and burdens. How will Brexit impact on what has happened to us and what has been accomplished by the concerned academic communities. Can the UK count on protective effects for their own young academics? Should the continentals be happy that they no longer subsidise the education of the British Isles? Should they be grateful for the diminution of the brain drain that they have endured thanks to the openness of British academia? Is it at all adequate to evaluate the effects of Brexit in such terms? What we can be sure of is that Brexit is also exposing us to cultural shocks and effects on academic biographies which even hard core economic analysts will hesitate to decipher. We should also be on guard for the ensuing collateral political damages. Threats which individuals feel exposed to – whether rightly or wrongly = have the potential to contaminate social relations. How confident can we be about the resistance of Europeanised academic communities against narrow-minded re-nationalisation, the rebirth of animosities and the return of stereotypes?

The latter considerations concern our privileged status. The Europeanisation of Europe’s citizens did not occur uniformly, but is characterised by deep asymmetries. Neil Fligstein, in his seminal, if widely neglected, study, estimates that only a small élite of 10-15 per cent has derived considerable gains from the integration process, whereas a middle group of 40-50 per cent has profited only occasionally, and a final set of 40-50 per cent of Europeans experience Europeanisation as an existential threat. Fligstein has correlated these findings with the differentiated support of the Integration project. In the light of his figures and findings, the erosion of the Union’s legitimacy, the rise of European populism, and the outcome of the British referendum do not come as such a big surprise. We, the European academics in general, and those affiliated with the European University Institute in particular, are certainly among the cluster of European élites who have, on the whole, profited very considerably. But how stable is our privileged status? How firmly established are the values which the Europeanisation of our academic lives has promoted? How autonomous is the academic system in a political environment which changes dramatically? Will we be sensitive to the threats of Brexit and strong enough to build up resistance?

These queries reach beyond the immediate concerns which the essays assembled in this working paper address. They mirror a great variety of individual biographies, political views and personal ambitions. What they have in common is the sorrow about European cultural accomplishments, which are not merely economic benefits but cultural enrichments experienced and realised in the encounters with and recognition of European citizens from other nations. We hope to raise awareness for processes which are looming with a disquieting potential.


*     This essay is from a Working Paper of the European University Institute, Department of Law, entitled “Brexit and Academic Citizenship” (LAW 2016.20, San Domenico di Fiesole 2016, available here. The paper, edited by Christian Joerges, collects a series of personal reflections on the outcome of the Brexit referendum. The essays do not engage with the legal and constitutional issues that arise from this event – these aspects have received comment elsewhere. Rather, the editor has solicited personal reflections from a group whose scholarly journey included the European University Institute, a hub for transforming, and integrating Europe. Aware of this privileged position, the authors shed light on how the result of the referendum and its aftermath may impact on the UK and the European Union.

The problems associated with associate citizenship of the EU

Dr Adrienne Yongyong

It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.

Associate citizenship of the EU

With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.

It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.

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Skating on Thin Ice: The European Commission challenges the governance rules of an international sports association as being incompatible with European antitrust rules

By Peter Alexiadis and Pablo Figueroa[1]

The recent announcement by the European Commission (“the Commission”) that it is actively looking into the compatibility of the disciplinary measures exacted by the International Skating Union (“ISU”) with competition rules reminds us yet again of that there are few elements of modern life that are exempt from the scope of EU competition rules.  The approach being undertaken by the Commission in the ISU case constitutes a logical extension of the recent interest shown by National Competition Authorities within the EU on the compatibility of governance rules of sports organisations with national and EU competition law.[2]

I.                        The Facts

Based in Lausanne, Switzerland, the ISU is the only body recognised by the International Olympic Committee (“IOC”) with the responsibility of administering the sports of ice figure skating and speed skating. In turn, its members are the various national ice-skating associations.

The Commission had initiated proceedings in relation to ISU’s eligibility rules in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert (gold medal winner at the 2010 Winter Olympics) and Niels Kerstholt.[3]

After an extremely short formal investigation of less than a year, the Commission has announced that the rules imposed by the ISU might be in contravention of the EU prohibition on anti-competitive agreements under Article 101 TFEU.[4]

More precisely, the Commission has informed the ISU of its preliminary view that its rules, under which athletes face severe penalties if they participate in speed skating events which have not been authorised by ISU, might infringe EU competition rules. Competition Commissioner Margrethe Vestager has indicated that the Commission’s concerns stem from the belief “that the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU’s control over speed skating. The ISU now has the opportunity to reply to our concerns”.

These accusations are outlined in a Statement of Objections addressed to the ISU, a document which informs the parties concerned of the competition allegations raised against them and which foresees that investigated entities can reply in writing and also request an Oral Hearing.  While the issuance of a Statement of Objections does not prejudge the outcome of the investigation, it is relatively rare that the Commission backs away from its claims.

According to a blog post by the Complainants’ counsel, which includes a twitter exchange between a skate complainant and Commissioner Vestager,[5] the complaint is based on the ISU’s intention to declare skaters as “persona non grata” where they participate in events organised by Icederby International, a private entity.  Moreover, the Complainants contended that the ISU Eligibility Rules rendered ineligible a person skating or officiating in an event not endorsed by ISU and/or its Members (i.e., the individual national associations) from participating in ISU activities and competitions.[6]  According to the Complainant’s counsel, this sanction apparently applies not only to the skaters, but also extends to coaches, trainers, doctors, team attendants, team officials, judges, referees and even volunteers.

By way of rebuttal, the ISU noted in a recent press release that independent organisers can establish international tournaments on the ISU calendar, and that Icederby, an organisation which initiated the complaint that triggered the Commission’s investigation via the two speed skaters in question, recently received ISU authorisation to co-run an event.[7]

The facts of the ISU case are not entirely dissimilar to those of Fédération Internationale de l’Automobile (FIA) in the late 1990s.  In that case, the Commission closed its investigation, apparently after the FIA agreed to refrain from using its regulatory powers in relation to international motor racing in a manner that would mean that competing events were forced out of the market.[8] Continue reading