Leadership in Europe: A Recipe for Reducing Legal Uncertainty

Concerning the legal environment of business, the lawyers who teach as full-time instructors in American business schools affirm that managers would rather have a challenging environment that they know than one that is characterized by headlines such as, “Legal Uncertainty Imperils EU Agreement.” At the E.U.’s parliament, which represents the E.U.’s citizens, the president of the European Council, Herman Van Rompuy, said in the wake of the agreement, “An intergovernmental treaty was not my first preference, nor that of . . . most of the member states . . . It will not be easy, also legally speaking. I count on everybody to be constructive, bearing in mind what is at stake.”[1] Investors were “largely dismissive” of the Council meeting  at which the extra-E.U. agreement on strengthening the enforcement mechanism of state deficit and debt limits had been reached at the end of the previous week. Alan Brown, chief investment officer at Schroders Investment Management, which had at the time almost $300 billion under management, said of the results of the Council meeting, “Yes, it was what I expected, and yes, I was disappointed.”[2] Schroders was backing up this view with a modest bet against the euro. Relatedly, Barclays was forecasting the currency to fall from $1.30 on December 13, 2011 to $1.25 by June 2012. Besides the pessimism on the “intergovernmental treaty” as well as a possible increase of funds from the $500 billion cap on the agenda at a Council meeting in March 2012, the sheer uncertainty described by Van Rompuy lowers the value of the announced agreement and the outlook concerning the viability of the euro as well as the E.U. itself.

Federalismus in Action: Jose Barosso of the E.U. Commission and Angela Merkel of Germany / NYT

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

1. Steven Erlanger and Stephen Castle, “Europe United, Minus One: A Firm German Imprint on an E.U. Transformed,” International Herald Tribune, December 10-11, 2011. 

2. Matina Stevis, Frances Robinson, and Marcin Sobczyk, “Legal Uncertainty Imperils EU Agreement,” The Wall Street Journal, December 14, 2011; Tom Lauricella, “Euro at 11-Month Low,” The Wall Street Journal, December 14, 2011.

Unanimity as Outmoded in the E.U."

In the U.S., states can get waivers from having to comply with regulations, depending on the particular law; federal legislation is not passed as if only between some of the several states. It is pretty much a one-size-fits-all notion of federal law, with opt-outs possible typically only on particular regulatory requirements. One such publicized waiver enables states to be exempted from the health-insurance mandate if they can show they have achieved the aim (universal healthcare) by another means. Massachusetts, for example, had a pre-existing program of universal health-care.

In Europe, David Cameron vetoed the European Council proposing an amendment to the E.U.’s basic law that would have strengthened the enforcement mechanism constraining state governments that exceed deficit and debt limits established by the E.U. His message was on behalf of state rights. So it was very smart indeed that the Europeans came up with a way to avoid the downside of unanimity while recognizing that some of the states jealously guard the sovereignty they have retained.  Hitherto, the veto mechanism that any state can use to block laws in important areas like taxation has crippled or at least hampered the E.U. institutions in meeting even the responsibilities entailed in the E.U.’s current competencies. Besides gradually increasing the percentage of the E.U.’s competencies (domains of authority) subject to qualified majority voting rather than unanimity, it turns out that groups of at least nine states can go ahead with legislation if a proposal is stalled or vetoed by a state. Crucially, the vetoing state need not be subject to the legislation. Valuing this is a distinctive European trait in the annals of modern federalism. Adding competencies to the E.U. government need not require every state, including most notably euroskeptic, veto-prone states like Britain, to give up more sovereignty.

The Visible Hand: Markets Forging a Stronger E.U.

Joschka Fischer, a former foreign minister of the state of Germany, said the agreement under which 17 state governments accept more oversight and control of their budgets by the European Union “was a big step, which was pushed on the Europeans by the markets.”[1] Such pressure was necessary, given the conflict of interest bearing on state officials working at the federal level on a deal that would add a new competency to the E.U. “(I)n the end,” Fischer added, “the markets have limited the options of the political leaders, especially of Merkel, and pushed her into giving more support for the euro.”[2] Giving more support for the euro meant giving more power to the E.U. at the expense of the state-level where Merkel has most of her power. From this vantage point (i.e., the power that state officials have at the E.U. level), it is amazing that the E.U. has been able to acquire any additional competencies.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

1. Steven Erlanger and Liz Alderman, “Chronic Pain for the Euro,” The New York Times, December 12, 2011; Landon Thomas, “A Stark Step Away From Europe,” The New York Times, December 11, 2011. 

2. Ibid.

The Democracy Deficit in Nominating Presidential Candidates

“Newt Gingrich is up, Herman Cain is out, and the attacks are getting sharper as the GOP primary campaign enters the final month.”[1] The final month, that is, before “Iowa launches the contests that will choose the challenger to President Obama.” This has the ring of before time began, or before the beginning. That anything is decided before the beginning may seem metaphysically impossible even if it applies politically. One might demur, claiming that anything without a foundation ought not to be able to exist, let alone to stand. Can Americans borrow anything from the E.U.'s presidents that might improve how the U.S. president is selected?

The full essay is at Essays on Two Federal Empires, which is available at Amazon. 

1. Susan Page, “Gingrich Rises in GOP Field; Cain Out,” USA Today, December 5, 2011.

A Dilemma for the E.U.: A Convention or an Amendment?

In November 2011, European leaders began to talk about amendments to the E.U. that would “change the fundamental structure of the union.”[1] Complicating the talks was ambiguity concerning the nature of the E.U. itself at the time. Foremost among the changes being discussed was the idea of a form of centralized oversight of the budgets of the state governments, with “sanctions for the profligate.”[2] The existing E.U., while more than the American Articles of Confederation, was at the time found to be insufficient in keeping the debt crisis from spreading from state to state and engulfing the union itself and its currency. “The survival of the euro zone is in play,” one senior European official said, “So far it’s been too little, too late.”[3] In this respect, the pressure for “ever closer union” was like that facing the Americans in the mid-1780s. Because the nature of the union was itself an issue, a convention composed of delegates—not state officials—directly elected by the people for the purpose might seem best suited. However, I contend that while rethinking the E.U. was not without merit at the time, the specificity of the planned amendment argues against the idea.

1. Steven Erlanger, "Leaders Struggle for a Deal to Keep Euro Intact," The New York Times, December 4, 2011.

2. Ibid.

3. Ibid.

An American President Meets the E.U.: Corrective Exigencies of a Debt Crisis

 Political protocol can take some time to catch up to changed political realities. For over two hundred years, it has been assumed that U.S. presidents have met with their counterparts in E.U. states such as Britain, France, and Germany. During the European debt crisis, “in numerous private conversations and increasingly forceful public statements, [American] policy makers are urging their European counterparts to take big steps and move fast to reassure markets.”[1] It was undoubtedly assumed that the counterparts were at the state level in the E.U., rather than in E.U. governmental institutions. So how are we to situate Barak Obama’s meeting on November 27, 2011 with José Manuel Barroso, president of the European Commission; Herman Van Rompuy, president of the European Council; and Catherine Ashton, the European foreign policy chief? 

 Doug Mills/NYT

1. Anne Lowrey, "Obama Meets Leaders of the European Union," The New York Times, November 28, 2011. 

Monti and Papadernos in the E.U.: Leadership in Technical Expertise or Democratic Deficit?

“The moment of truth has come.”[1] This was said by the head of state of the E.U.’s third largest state, Italy, in a televised address just after Berlusconi had resigned as the prime minister. Although the statement could be interpreted as referring to the need to reign in the Italian profligate system of public-sector patronage (which includes private contractors), Giorgio Napolitano could also have been referring to the credibility of his state at the E.U. level. “We need to restore confidence with investors and European institutions,” he continued before turning to the more tangible point that the state would need to refinance nearly 200 billion euros in government bonds before May, 2012.[2]

 Monti and Barroso (Thys/Agence France-Presse/Getty)

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

1. Alessandra Galloni and Christopher Emsden, “Italy’s Monti to Form New Government,” The Wall Street Journal, November 14, 2011.
2. Stephen Castle and Liz Alderman, “Under a New Prime Minister, Italy’s Star May Rise at the European Union,” The New York Times, November 23, 2011.

The African Customs Unions and the E.U.: On Currencies

The East African Community (EAC) is Africa’s “most advanced regional trade bloc,” according to The Wall Street Journal. As of the journal’s report in late 2011, the EAC was already a customs union that guaranteed the movement of goods and the right to work across Kenya, Uganda, Rwanda, Burundi and Tanzania. The parliaments were working at the time on synchronizing immigration and tariff laws. “We want to develop this corridor vigorously and collectively,” Mugo Kibati, director of a Kenyan government program, said. The journal notes, however, that the EAC and other trading blocs in Africa, such as the Southern African Development Community, were “backing away from one prominent aspect of Europe’s economic union: a common currency.” Aside from any vague similarities that the fiscal differences between Greece and Germany may have to those between Zimbabwe and South Africa, the currency question itself is out of place for a NAFTA-like trade agreement.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

1. Patrick McGroarty, “Africa’s Goal: EuropeWithout the Currency,” The Wall Street Journal, November 21, 2011.
2. Ibid.

3. Ibid.

On the Role of the European Central Bank in Ending the Debt Contagion

“That the [ECB was being] forced [in 2011] to step into the power vacuum left by a fractious political class underscores the increasing centrifugal forces unleashed by the debt crisis.”[1] Yet that pressure was being applied to the central bank to issue Eurobonds and buy more state government bonds in spite of the objections of German officials suggests that there were also centripetal forces acting on the center at the expense of the state capitals, even Berlin. It is important to view the E.U.’s “management” of its debt crisis through the prism of the history of European integration since the Shuman Plan in 1951, which called for ever closer union so as to obviate war and give Europe a stronger economic and diplomatic power in the world. The history of the European project can be characterized as a series of fits and starts, punctuated by momentary crises—each proffering potential ruin to the union itself. For example, France’s veto of Britain’s accession as a state must surely have struck some people as portending the end of the EC—the forerunner to the E.U. Yet from the vantage point of 2011, the conduct of the accession seems a mere hiccup on a much longer road of hills and valleys. Regarding the extent of integration by 2011 (e.g., monetary union), the question is whether European efforts to come to grips with the contagion of over-burdened state debt signify merely another valley, or an inherent contradiction or fault-line in the E.U. itself. Whatever the answer, the outcome will no doubt come about incrementally, as one might expect from E.U. history.

The full essay is at "Essays on the E.U. Political Economy," available at Amazon.

1, Brian Blackstone and Matthew Karnitschnig, “Crisis Ensnares Central Bank in Desperate Bid to Save Euro,” The Wall Street Journal, November 18, 2011.

On the E.U. Debt Crisis: Lessons from the Early U.S.

In the March 2, 2010 issue of The New York Times, Roger Cohen illustrates how useful EU-US comparisons can be.[1] He is careful to compare the E.U. of his time not to the contemporaneous U.S., but, rather, to it a few decades into its founding. In other words, he corrects for the impact of time on political development. This is not to say that the E.U. in 2010 was akin to the U.S. under its Articles of Confederation. The Articles treaty evinced far less integration politically and economically. For example, whereas the Articles sported only a common council of delegates from the states, the E.U. in 2010 had a presidency (the European Council, whose president was Van Rompuy), an executive branch (the E.U. Commission, whose chief executive was Barroso), a bicameral legislature (the E.U. Council (of Ministers) and the E.U. Parliament), and a supreme court (the European Court of Justice, or ECJ). In fact, whereas under the Articles the American republics held governmental sovereignty, the ECJ held in 1963 and again in 1964 that E.U. law is supreme over state law and state constitutions. In short, whereas the Articles did not split the atom of governmental sovereignty, the E.U. in 2010 was a federal system of dual sovereignty. Like that of the U.S., the E.U.'s federal system is itself on the empire level; its republics being commensurate with the early modern kingdoms.

The complete essay is at Essays on Two Federal Empires, available at Amazon.

1. Roger Cohen, “Greece, Europe and Alexander Hamilton,” The New York Times, March 1, 2010.