HAJO DUKEN. High time for Australia to understand and embrace the EU

Jun 10, 2019

It has been said that in the world order of the 21st century, countries will end up as a colony of either the US or China or be a member of the EU. This may sound overly simplistic but one thing appears to be clear: whilst the US and China are headed for a new cold war, the Brexit saga and the recent European elections have strengthened the EU. For Australia, who is dangerously exposed not only by the US/China conflict but also by losing the UK as its gateway to Europe, it would be inexcusable to not give top priority to the ongoing free trade negotiations with the EU and use the opportunity to seek the closest possible ties with it. However, this requires a much better understanding of the EU.

The elections are over, both in Australia and in the EU. The growing conflict between the US and China is back in the headlines and we are reminded daily that this conflict presents one of the biggest threats to our wealth and prosperity and potentially also to our safety. Both superpowers are now taking an ‘us or them approach’ and will increasingly demand from smaller countries and businesses around the globe to take sides with either of them in an increasing number of areas (trade, foreign investment, technology, territorial disputes etc.).

After the Brexit referendum and the election of Trump in 2016, many commentators (mainly in the Anglo-American media) prophesised that the days of the EU would be numbered. Since then we have witnessed the dramatic erosion of the oldest democracy in the world seemingly incapable of reconciling the results of a (flawed) referendum with reality and the national interest, and by now it seems more likely that the UK fall apart rather than the EU.

The EU on the other hand has shown remarkable unity and managed the Brexit process in formidable fashion. Only 6 days after the referendum, the EU27 Heads of State or Government had already agreed on how the EU would manage the process and which principles would guide it. On 22 May 2017 (less than 2 months after receipt of the Article 50 notice), the EU had all relevant guidelines and negotiation directives approved. The EU negotiation team around Michel Barnier (now one of the candidates for the presidency of the European Commission) and his deputy Sabine Weyand (just promoted to the position of Director-General of the EU’s trade division, effectively becoming the EU’s top trade official) gave a masterclass in international negotiations. This made European countries remember the advantages of EU membership and many Europeans somehow proud of ‘their’ EU. It was therefore no real surprise that most major political parties competing in the European elections campaigned on a clear pro-EU platform, the turn-out was remarkably high, the overall gains of the far-right were only very modest and pro-EU parties still hold more than two thirds of all seats in the new EU Parliament. Despite all challenges ahead, the EU will remain the only player in the world that plays in the same league as the US and China.

It therefore remains astounding how little knowledge governments, the media and the general public in the Anglo-American world (including in Australia and the UK) often appear to have about the EU. Far too often the EU is merely seen as an economic club. Nothing could be farther from reality.

Whilst the EU is not a country/federation in a traditional sense, and the relationship between the EU and its member states is highly complex, the EU has many features of a sovereign country (member states have transferred a substantial part of their sovereignty to the EU) and every third country is well advised to accept the EU as such.

The EU is an institution with its own legal personality and its own quasi-constitution (the ‘Treaties’ comprising of the Treaty on European Union (TEU) and the Treaty on the Functioning of the EU (TFEU), both as amended by the treaty of Lisbon in 2007)), it creates its own laws enforced by its own judiciary, awards an EU citizenship to the citizens of any member state and is (in its own right) a party to a large number of international agreements and a member of the WTO, the G7 and the G20. As such, and like any country, the EU has its own interests and sees self-preservation as a top priority. Despite all internal disagreements, the EU will almost always side with its members (in the case of Brexit, Ireland and also Spain) against third countries and will always consider the interests of its citizens as paramount.

A very good starting point for understanding the EU is Article 3 TEU which sets out the EU’s objectives (often summarised as peace, freedom and prosperity for its peoples). The order is not coincidental. The EU does not see itself predominantly as an economic project, although it has brought (through the concept of a single market) tremendous wealth to its citizens and at any relevant point in time the economies of EU/EEA member countries have almost always outperformed the economies of other European countries.

An even bigger achievement, however, is that the EU has brought an unprecedented period of peace and stability to a continent where for centuries there was hardly a decade without a war between two or more European powers. This aspect is particularly appreciated in those European countries that were occupied and/or destroyed during WWII. In addition, the European continent has always been and still is full of (regional) territorial conflicts and disputes, and nationalists in all parts of Europe have always tried to instrumentalise those conflicts. The beauty of the EU is that, whilst those conflicts are not always permanently resolved, they often become irrelevant and almost forgotten as long as both parties (countries) to the dispute stay within the EU or aspire to join the EU. Examples include the Basque country, former Yugoslavia including the most recent settlement between Greece and North Macedonia, and as far as the UK is concerned, Northern Ireland and Gibraltar.

It has therefore been inconceivable from the beginning that the EU would enter into any withdrawal agreement with the UK without preserving at least the status quo resulting from the Good Friday Agreement, and it is unlikely that the EU will accept any deep and special relationship with the post-Brexit UK unless the conflicts over Gibraltar and Northern Ireland are permanently settled (in the case of Northern Ireland this may well entail a referendum on unification). Whilst the EU has always sided with member countries against internal independence movements (see Spain and Catalonia), it is very well possible that the EU will become more and more sympathetic towards the Scottish cause and support (and possibly even make a future deal conditional upon) a second Scottish referendum after Brexit.

It is often overlooked that the EU also considers itself as a protector of the freedoms of all EU citizens, including against their own (elected) governments. Individuals, and opposition and minority groups, in many European countries (member countries or candidates) consider the EU as the guarantor of their freedoms, and the EU uses its powers to challenge member states where freedoms are threatened (Poland and Hungary being prominent examples whilst Romania has just renounced its controversial judicial reforms). The EU acquis which guides the EU in its negotiations with new candidates for EU membership, includes chapters relating to freedom and justice. It is no coincidence that in his remarkable speech to the European Parliament on 27 March 2019, Donald Tusk reminded all Europeans to not betray or give up on those EU compatriots in the UK who do not feel represented by their own government and parliament.

For Australia, it may well be time for an unemotional and non-nostalgic analysis of our position in the world. We may find that our future relationship with the EU is far more important than the one with the UK and our views on trade, individual freedom and justice are much more aligned with the EU than with the global superpowers. Why not use the opportunity of the FTA negotiations for exploring (potentially in concert with other non-European democracies) the EU’s appetite for a more structured permanent association with the EU?

Hajo Duken is a lawyer admitted in Germany and Australia. He has practised in EU law and designed and delivered seminars and lectures on EU, constitutional and international law throughout his career. In Australia he worked in private practice and held senior legal in-house positions in various industries.

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