Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill, authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit. It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion.

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Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

To refer or not to refer, that is the question…

BlogPhotoDr Iyiola Solanke

A journey is a good time to gather thoughts and reflect. Having nothing to do but sit and watch the fields go by offers an opportunity for quiet reflection and deliberation. Such stillness should not be expected by the judges of the Supreme Court as they journey through the British constitution in the coming weeks – the headlines of the weekend papers make clear that their deliberations on the Miller case will not be set within a context of calm.

This is to be regretted, for the questions facing the Supreme Court are of a magnitude that cannot be overstated. They are of long term importance not only for the relationship between the UK and the EU but also internally, for democracy the UK. As important as the decision reached by the Court – whether the government must consult Parliament before art 50 is triggered – is the procedure by which that decision is reached, namely whether the Supreme Court uses Art 267 TFEU to refer a question of interpretation to the CJEU in Luxembourg.

Art 267 TFEU

Article 267 TFEU sets out the procedure whereby national judges can send questions[1] to the CJEU for interpretation of the Treaty and adopted secondary law, and the validity of the latter. The questions sent can concern technical matters such as the classification of pyjamas[2] or constitutional issues dealing with EU citizenship[3] or the validity of the European Stability Mechanism.[4]

Art 267 TFEU states that:

 (1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty b) the validity and interpretation of acts of the Institutions (2) Where such a question is raised before a court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law that court or tribunal shall bring the matter before the Court of Justice.

There is no time limit associated with the procedure: the question(s) can be sent as soon as need becomes apparent to national court/ tribunal.[5] However, this is not an appellate procedure: questions must relate to a pending dispute and be sent before a decision has been made.[6] There is no limit to the number of questions that may be in a reference,[7] or the number of references that a court can make prior to its decision, as long as these are new questions or might produce a different answer.[8] The CJ may also add to the questions sent.[9]

There is no definition in the Treaty of a ‘court or tribunal’. The guidance laid out in El Yassini[10] stressed a number of factors, such as whether the ‘body is established by law, whether it is permanent, whether its jurisdiction is compulsory,[11] whether its procedure is inter partes, whether it applies rules of law and whether it is independent.’ However, even if a body satisfies all of these characteristics, it will not be seen as a court or tribunal unless it is required to determine a legal dispute or exercise a judicial function[12] and falls within the remit of a member state.[13]

Given its status as the Supreme Court, a question on Article 50 sent under Article 267 is unlikely to be rejected. However, given the political consequences of the question, it may not be warmly welcomed by the CJEU. Yet this would be the legally correct course of action under EU law – this is the very first time that Article 50 has been considered in any national court in the EU, and there are important questions surrounding its interpretation, in particular whether it is revocable. This issue is especially important as in Miller, the irrevocability of Article 50 played a central role in the case before the High Court: there it was held that an irrevocable Article 50 makes the need for Parliamentary involvement in its triggering crucial. However, if Article 50 is revocable, this may lead to a different conclusion. The question on revocability is thus a question of the interpretation of EU law that should be put to the CJEU under Article 267. As it is a provision of EU law, only the CJEU may interpret it.

Division of Labour

Article 267 sets out a clear division of labour: the national court determines the questions that its needs answered, the CJEU answer those questions on EU law; the national court applies this interpretation to the facts before it. The CJEU may determine admissibility but the process is driven by the national courts – it is left to the discretion of the individual judge to decide whether or when a reference should be sent, what should be asked[14] and how the interpretation should be applied. The opportunity for the CJEU to tackle important questions such as the revocability of Article 50 can be compromised in the absence of referrals.

The Treaty states that courts of last instance must refer[15] yet some such courts refuse to comply.[16] A judge may ignore a request to refer,[17] agree[18] or refuse as in Mid Sussex Advice Bureau where Elias LJ believed that a referral asking whether a volunteer was a ‘worker’ who could access rights in the Disability Discrimination Act 1995[19] when read with the Framework Directive[20] would fail.[21] Alternatively a judge may decide not to refer because they can interpret the issue adequately themselves[22] or to avoid delay.[23]

Delay is inevitable – an average reference can take over one year to be addressed. Time is clearly of the essence in the Miller case so this is a practical reason for non-referral. As Miller does not concern a person in custody, the procedure préjudicielle d’urgence (PPU)[24] in Article 267(4) TFEU cannot be used. This is a shame because the PPU removes stages found in the ordinary procedure thus can reduce the time for a reference to as little as 2 months.[25] However, given the constitutional importance of the question – for both the UK and the EU – it is likely that the CJEU will deal with the question of revocability quickly. 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.

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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.

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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.

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“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.