The UK’s decision to leave the Union has not prompted any other Member State to consider doing so. There is no significant demand amongst Member States for a large-scale reversal of the project of European integration. On the other hand, there is significant resistance in a wide range of Member States to significantly increased integration. This would suggest that sticking with some version of the status quo would be the most desirable outcome for the EU. 

This desire to maintain the status quo would not be a problem if maintaining current levels of integration were feasible. However, this article, published in the European Law Journal, argues that this is not the case. The European Union operates on the basis that its current legal and institutional arrangements are temporary and will be replaced by more integrated versions in the future. Because the current set-up is not designed to be permanent, current structures and levels of integration will tend to produce policy incoherence and unsustainable inflexibility if maintained largely as they are. The Union may therefore struggle to cope if, as some Member States desire, it is decided to maintain current levels of integration indefinitely rather than moving progressively towards ever closer union. 

Furthermore, methods previously used to overcome blockages in the integration process, notably adventurous interpretation of the Treaties by the European Court of Justice, are unlikely to be capable of overcoming political resistance to integration now that EU law operates in areas such as national budgets and migration policy which are highly salient politically. 

The article looks at three areas, the law of citizenship, the Eurozone and the legislative structures of the Union, showing in each case that neither the current degree of integration nor methods used in recent times to move the integration process forward provide a long term basis for policy. 

In relation to the Eurozone, the article notes how the combination of a unified monetary policy without fiscal integration risks exacerbating economic cycles in Member States. The creation of the euro was intended to be a further step on the path of ever closer union but the article shows how the strong resistance to fiscal integration has meant that the EU is no longer even proposing measures it identified as crucial to the survival of the euro just a few years ago. 

In relation to migration the article shows that EU citizenship rights are caught in a similar trap. Recent Court of Justice rulings have refused to further develop the rights of EU citizenship and have upheld the right of Member States to deny social welfare payments and to expel economically inactive citizens of other EU states. However, existing EU law rights allow EU citizens who are expelled an almost unfettered right to return to the expelling state, producing a degree of policy incoherence. 

Most seriously, in relation to lawmaking the article shows how EU lawmaking structures were intended to be temporary in that they envisaged that the ability of small numbers of states to block legislative change would progressively be removed. While many areas of policy have moved from requiring unanimity in the Council of Ministers to requiring a Qualified Majority (55% of the states representing 65% of the population) many key areas remain subject to unanimity. For many of these areas there is little political appetite to remove national vetoes. This means that in many key areas EU law is effectively unamendable, something which damages the ability of the EU to adapt its law to changing circumstances. 

From the start, the EU integration process sought to begin with integration of relatively uncontroversial areas and to put off integration of sensitive areas. The hope was, that the fuller integration of key areas could be put off until the day when integration itself had convinced the peoples of Europe that intensive integration was what they desired. It seems increasingly likely that that day will never come. There is intense opposition to further integration in many states, coupled with a strong desire to avoid costly and disruptive disintegration of areas already integrated. This poses acute dilemmas for a Union which is then left permanently with structures designed to be temporary and which produce sub-optimal policy outcomes or are excessively rigid in their current form. Though weakened after the German election, Angela Merkel may have no option but to support Emmanuel Macron’s ambitious integration plans if she wants the EU to have a long-term future. 

Dr. Ronan McCrea is Senior Lecturer in Law at UCL Faculty of Laws.